Bill to define ‘sex’ as male and female passes first hurdle on Senate floor

Democrats warn that lawsuits arising out of the bill could cost the state millions

By: - March 15, 2023 6:27 pm

Sen. Ellie Boldman, D-Missoula, speaking on the Senate floor in opposition to SB 458. (Photo by Nicole Girten/Daily Montanan)

Sen. Mary Ann Dunwell, D-Helena, said a bill that would define sex in Montana code as male and female is one of the most extreme anti-LGBTQ pieces of legislation in the country.

“It erases human beings from our legal code. It erases trans people, and tens of thousands of Montanans with differences in sexual development. It erases them from law,” Dunwell said on the Senate floor Wednesday.

Dunwell spoke in opposition to Senate Bill 458, sponsored by Sen. Carl Glimm, R-Kila, who said his bill to define sex in law is a simple bill and would make sure there is no conflation between sex and gender in code.

“Years ago, these used to mean the same thing, but they don’t anymore,” Glimm said.

The bill passed second reading in the Senate 28-22, with six Republicans voting with Democrats in opposition. More than 40 people testified against the bill when it was heard earlier in committee. According to a report that tallies cumulative messages to legislators, the bill received 13 messages of support and 41 in opposition as of Wednesday morning.

Following the policy hearing, Democrats requested there be a closer look at the financial implications of the bill, and it was redirected to Finance and Claims. That committee saw sparks as well; a fiscal analysis estimated the bill would have $0 financial impact, but some state agencies submitted technical notes saying the bill may risk federal funding as well as potential costs associated with litigation.

Earlier this week, Democrats requested legislative services conduct a “deeper dive” into the fiscal implications of the bill. Following the floor session, Minority Leader Pat Flowers, D-Belgrade, said the hope is to be able to have it ready for committees in the House to consider if the bill makes it that far.

Beyond the discussion around attorneys fees and loss of federal funding, Flowers said the fiscal impact could also extend to potential damages claims, pointing to the numerous opponents who spoke to how the bill would impact them emotionally or otherwise.

“I think that could translate to some very real costs for the state,” he said.

Flowers said on the floor that the Department of Public Health and Human Services manages $5 billion in federal funds each biennium that would stop flowing if the state were non-compliant with federal protections against discrimination.

“To what degree is this Senate chamber ready to go off into the woods and take that risk?” he said.

Sen. Russ Tempel, R-Chester, one of the Republicans to vote against the bill on the floor, said he didn’t see a reason for there to be a change in the law on this issue.

An amendment to the bill from Sen. Brad Molnar, R-Laurel, that would add intersex into the definition, passed 30-20.

Glimm cited the lawsuit over legislation he brought last session that would limit transgeneder Montanans’ ability to change the gender-marker on their birth certificate. The bill has been stalled in Yellowstone County District Court. Glimm said the judge in the case used gender and sex interchangeably, which he said was incorrect.

Senate Bill 280 from the 2021 session was the springboard for this legislation, Glimm said in committee, which was drafted in coordination with the Montana Family Foundation.

Sen. Greg Hertz, R- Polson, said the bill is not about discrimination and explained why he was voting for it.

“It’s not because I hate somebody, it’s not because I want to discriminate against somebody. And it’s not because I don’t approve of your gender, or how you want to live your lifestyle,” Hertz said. “This bill is about a definition.”

Democrats cited potential issues with enforcement, and unintended consequences, like child abuse survivors, who if they didn’t meet the definition of sex as outlined in the bill, wouldn’t have recourse against their perpetrators.

The bill will need to pass third reading before heading to the House.

Definitions in the bill as amended:

“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. An individual who cannot produce an egg due to a condition at birth, but who has male sex chromosomes and nonambiguous internal genitalia is a female member of the human species.

“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. An individual who cannot produce sperm due to a condition at birth, but who has female sex chromosomes and nonambiguous external genitalia is a male member of the human species.

“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. The sex of an individual with a chromosomal intersex condition or individual who cannot produce egg or sperm gametes due to a condition at birth must be determined based on the most predominant physical characteristics observed a the time of birth.

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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.