Bill defining ‘sex’ in statute could impact LGBTQ marriage, legal documents, opponents say
Opponents line up to testify against SB 458 in Senate Public Health, Welfare and Safety on Feb. 27, 2023. (Photo by Nicole Girten/Daily Montanan)
Angel Banks will be a non-binary person whether Senate Bill 458, which would define sex in statute as male and female, is codified into law or not. That’s what Banks said before a committee hearing on the bill on Monday.
“I will be Angel the non-binary person when you force me into sex work because you made workplace discrimination legalized. I will be Angel the non-binary person when you legalize healthcare discrimination, and I will be Angel the non-binary person ’til the day I die,” said Banks.
Banks was one of more than 40 opponents to testify against Senate Bill 458, a piece of legislation that is more than 60 pages long and would provide a uniform definition for “sex” in statute.
Bill sponsor Sen. Carl Glimm, R-Kila, said sex and gender had previously been interchangeable, but now they mean two separate things.
“Gender is obviously something different than biological sex. Biological sex is immutable, you can’t change it. There are only two biological sexes,” Glimm said. “You may claim to be able to change your gender or express your gender in different ways that you can never change your biological status, and this is why Senate Bill 458 is necessary.”
Glimm said the genesis for the bill came from the court fight that ensued after Senate Bill 280 passed in 2021. That bill restricted transgender Montanans from changing the gender marker on their birth certificates. The law has been temporarily stopped by a judge in Yellowstone County District Court.
SB 458 passed out of the Senate Public Health, Welfare and Safety Committee Monday night along party lines with Republicans in favor, with an amendment to add a severability clause, which Sen. Jen Gross, D-Billings, said was a signal the bill would be challenged in court and the clause is an attempt to save the rest of the bill.
Gross motioned to table the bill during executive action, typically a non-debatable motion. However, Chairman Sen. Tom McGillvray, R- Billings, said he did not accept her motion and continued discussion on the bill.
Proponents for the bill included Dr. Shawn Gillis, an OB/GYN from Bozeman, Jay Richards, with the Heritage Foundation and Jeff Laszloffy, with the Montana Family Foundation.
Laszloffy was integral to the drafting of the bill, requested by Glimm.
Definitions in the Bill
“Female” means a member of the human species that, under normal development, produces a relatively large, relatively immobile gamete, or egg, during her life cycle and has a reproductive and endocrine system oriented around the production of that gamete.
“Male” means a member of the human species that, under normal development, produces small, mobile gametes, or sperm, during his life cycle and has a reproductive and endocrine system oriented around the production of that gamete.
“Sex” means the organization of the body and gametes for reproduction in human beings and other organisms. In human beings, there are exactly two sexes, male and female, with two corresponding gametes. The sexes are determined by the biological indication of male or female, including sex chromosomes, gonads, and nonambiguous internal and external genitalia present at birth, without regard to an individual’s psychological, chosen, or subjective experience of gender.
Opponents included the Human Rights Campaign, advocacy group Forward Montana, Montana Coalition Against Domestic and Sexual Violence and the ACLU of Montana.
SK Rossi with the Human Rights Campaign said the bill seeks to erase anybody who doesn’t fit within the definitions proposed in the bill, including transgender, non-binary, two spirit and intersex people.
Rossi said this bill would require people outside the binary definitions to either misgender themselves in nearly every legal context, like birth certificates, driver’s licenses and marriage licenses, or correctly gender themselves and risk any number of penalties associated with misrepresentation or fraud.
Departments will need to figure out a way to verify someone’s sex, Rossi said, “I don’t know how that happens without genetic testing or pelvic exams or some reproductive examination.”
Rossi said discrimination based on transgender status or gender counts as sex discrimination under the Constitution both here in Montana, and at the federal level.
Dr. Lauren Wilson, president of the Montana chapter of the American Academy of Pediatrics, said that the premise that there are only two sexes is wrong.
“What this bill doesn’t say is what it expects to happen with a nearly one in 100 people who are intersex, meaning they don’t fit into those two categories,” Wilson said.
She said as a pediatrician, she’s gone to deliveries where the baby cannot be categorized as male or female and the outward appearance is considered ambiguous, and that sometimes being intersex is obvious at birth, it but can become apparent in childhood or puberty. She said chromosomes come in other variations than just XX and XY.
Rep. Zooey Zephyr, D-Missoula, the first openly transgender woman to serve in the legislature, echoed the testimony heard before her that this bill targets trans people.
“It targets us from cradle to grave,” Zephyr said. “When we are murdered, which we are murdered at a high, high rate, it misgenders us in our death.”
Zephyr said she is recognized as a woman by both Republican and Democrat members in the statehouse.
Opponent Chloe Runs Behind challenged committee members to read the bill in its entirety and determine “how exactly it would make Montana a better place.”
“If you can think of anything, weigh that against the tens of thousands of Montanans it disenfranchises by codifying a false definition of sex,” Runs Behind said. “I didn’t come here to beg for my rights.”
Opponent Dandelion Cloverdale from Missoula said people do not need to know what is in someone’s pants for them to participate in any academic, professional, athletic community or workplace.
Minority Senate Leader Pat Flowers, D-Belgrade, sat in the committee as an ex-officio member and asked Glimm about the need for the bill.
“Given what we’ve heard about all the impacts that this is going to have on human beings, why is this so important?” Flowers asked.
“I think it’s about being factual and being real, that sex is something that is defined and you can’t change,” Glimm said.
Flowers followed up asking, “Where does the problem come from?”
Glimm pointed to the court battle over SB 280.
“That said we’re gonna put sex on our birth certificate, and that you can’t change it,” Glimm said. “That went to the courts, and it got all jumbled up in the gender discussion.”
During executive action Sen. Brad Molnar, R-Laurel, asked if an amendment could be made to include intersex people. Glimm said he’d “talk with some of the experts on it.”
The bill will next go to the Senate floor.
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