Legislators criticize $0 fiscal note for bill defining sex in statute

By: - March 11, 2023 9:28 am

Sen. Carl Glimm, R-Kila, speaks before the Senate Finance and Claims committee on March 10, 2023. (Photo by Nicole Girten/Daily Montanan)

Sen. Christopher Pope, D-Bozeman, said it looked like the fiscal note for a bill that would define sex as male and female in Montana law was “put together in three and a half minutes.” He said he knew that wasn’t the case.

“This is concerning to me,” Pope said.

Pope was one of several Democrats on the Senate Finance and Claims committee to criticize the fiscal note that says Senate Bill 458 would have no fiscal impact to the state.

The bill, sponsored by Sen. Carl Glimm, R-Kila, was modeled after legislation that passed in 2021 that 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.

Pope brought up the cost associated with litigation of the previous legislation, saying potential legal fallout from the bill might create “fiscal inefficiency” that could create a burden for the taxpayer. The brevity of the fiscal note left legislators with more questions than answers.

“How do we assess that if … we have a sheet of paper that doesn’t even have any writing on the back of it on a bill that’s 64 pages long,” Pope said.

Deputy Budget Director Amy Sassano with the Governor’s Office said she polled state agencies about the fiscal impact of this bill. She said most of them responded with an email saying there was no fiscal impact.

But a Department of Corrections technical note said the bill would create a conflict between state and federal law on the definition of “sex” and sex discrimination, which could cause DOC to face liability in federal court, “which will create a significant fiscal impact.”

In the technical note, the DOC said it would affect the department’s ability to house incarcerated people from other states and would impact interstate agreements. It would affect the inmate population, but the cost would be “impossible to quantify,” the note says.

Sassano said the technical note fell into a “gray area.”

“Litigation generally falls into what should be presented as testimony in the bill and not included in the fiscal note,” she said.

Sen. Ellie Boldman, D-Missoula, said because DOC said that the impact would be significant, the current fiscal note was “a bit disingenuous.”

“I didn’t say that the agencies responded with no concerns. The agencies responded with no fiscal impact,” Sassano said.

During questions, Boldman asked Sassano if she was a female or a male. Chair Sen. John Esp, R-Big Timber, said he would not allow the question.

Boldman said in an interview following the hearing that the question spoke to the “absurdity” of the bill. She said under the definition in the bill, the only way to “prove” gender would be through a blood test or a genital exam.

She questioned if agencies were told to say there would be zero funding impacts.

Sen. Ryan Lynch, D-Butte, said he didn’t want to put Sassano in the “hot seat” but requested copies of the agency responses.

“Senator Lynch, I think you would like nothing more than to put me on the hot seat,” Sassano responded. “I will go back and discuss that with the budget director.”

Following the close of the hearing, Boldman asked if there would be an opportunity to hear from the agencies that responded to the Budget Office on the fiscal impact since they weren’t present at the hearing.

“Did I hear her just call Ms. Sassano a liar?” asked Sen. John Fuller, R-Kalispell, to which Esp said he didn’t think so.

One opponent to the bill in their testimony spoke to the lack of detail in the fiscal note as well.

“The thing my parents always said whenever they came home after they’d been on vacation is ‘I can tell you had a party because the house is too clean, and that’s how I feel about this fiscal note,’” said SK Rossi with the Human Rights Campaign.

Rossi said lawmakers should be suspicious of a bill that impacts 40 different sections of code and has a zero fiscal note.

Rossi listed the various departments and governmental duties that would be impacted by this legislation that could have fiscal impacts, including marriage certificates, insurance, medical care and vital statistics.

There were three proponents and six opponents to the fiscal note of the bill, a point of some confusion among some proponents who started to testify on the content of the bill.

The committee room was filled with students from Heritage Academy, described on the House Floor by Speaker Matt Regeir, R-Kalispell as a Christian homeschool co-op out of Kalispell. One student went to the podium as a proponent, starting to talk about transgender athletes, and Esp said she had to speak to the financial impact of the bill.

One proponent attempted to get around this technicality by just adding “fiscal” to her testimony in favor of the bill. But Sen. Janet Ellis, D-Helena, opposed her testimony.

“The fiscal problem with transgenderism is that it – its acceptance at any level necessarily entails the complete destruction of women’s bathrooms, women’s sports,” said Andrea Pickens, who works at Heritage Academy.

“Mr. Chairman…” said Ellis.

“All the specific rights in spaces that women currently have themselves will fiscally…” said Pickens.

“Mr. Chair,” said Ellis.

“… be destroyed,” Pickens said.

One person who said he was a proponent said that it would be “less chaotic” to have set definitions for male and female.

“Anytime you introduce chaos into the system, with matters having to do fiscally, it’s going to cost more in general,” said Joe Boyle.

Opponent Shawn Reagor with the Montana Human Rights Network said he agreed inserting “chaos into code” would have fiscal impacts.

“We believe that’s exactly what this bill will do,” he said. “This bill touches so many different pieces of code. It’s impossible to look at them each individually and really understand the true impact that it will have.”

The committee didn’t immediately take action on the bill, which advanced last week out of the Senate Public Health, Welfare and Safety Committee.

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.

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Nicole Girten
Nicole Girten

Nicole Girten is a reporter for the Daily Montanan. She previously worked at the Great Falls Tribune as a government watchdog reporter. She holds a degree from Florida State University and a Master of Science from the Medill School of Journalism at Northwestern University.