A “lie-in” at the Montana Capitol on March 31, 2023 for the Trans Visibility Day (Photo by Blair Miller of the Daily Montanan).
In Montana, it’s called Senate Bill 458.
In national circles, it has been dubbed “The LGBTQ Erasure Act.”
This week, a panel of national organizations and lawyers took aim at the bill, sponsored by Sen. Carl Glimm, R-Kila. Glimm has said the bill is simply about defining sex in state law, but the text of the bill runs 61 pages long, and defines humans as either male or female with no other options.
Opponents of the measure have said the bill ignores the variation in humans, including LGBTQIA members who would be effectively wiped from legal existence if the law is passed. Meanwhile, Republicans who support the measure say that revising state law is necessary because of an ongoing legal battle stemming from Montana citizens’ ability to change their birth certificates. Conservative lawmakers have said the terms sex and gender have been used too imprecisely, and need stricter definitions.
Opponents of the measures say not only does the law misapprehend science, wiping out those residents who do not biologically fit the narrow definition, but it is also likely that if the law were to pass, it would put transgender residents at higher risk because birth certificates may be immutable.
On Wednesday, representatives from the Human Rights Campaign, the nation’s largest LGBTQ rights organization, Georgetown University Law Center and the ACLU spoke about the bill, which they said may be the most radical bill in the country, even at a time when hundreds of bills dealing with the LGBTQ community are moving through legislatures throughout the U.S.
Democrats and other groups have warned because the proposed narrow definition of sex is so narrowly tailored, it will discriminate against LGBTQIA people and risk federal funding. Nearly half of Montana’s budget, or $7.5 billion during the next biennium could be at risk. However, the federal government has yet to weigh in on the measure.
Paul Smith, a professor at Georgetown University, spoke about Montana’s proposed law. Smith worked on the landmark case, Lawrence vs. Texas, that went to the United States Supreme Court. The high court’s landmark ruling said many statutes that criminalized consensual homosexual acts were illegal.
He told members of the Montana and national media that the definition was so narrow that it could be easily challenged under constitutional law, and Glimm’s measure is a “flat refusal” of the Bostock ruling, another Supreme Court case that says discriminating against transgender individuals falls under sex discrimination.
“This seems to be trying to get people to leave or not to get transitions that are essential to their health, and it is unworkable or unfair to them because they have the right to choose that under the federal constitution,” Smith said.
He told reports that Montana will have a hard time defending such a measure, if it passes.
“There is no state interest at stake here. I think a federal court would say that Montana doesn’t get to say, ‘We don’t accept you as transgender,’” Smith said. “The law, in this case, said they don’t exist, but you can’t do that. They have constitutional rights not to be discriminated against, and not to have their liberties interfered with when it comes to making medical decisions about their own bodies.”
Akilah Deernose, a staff attorney at the ACLU of Montana, said while SB458 may be a violation of federal law, it also conflicts with Montana’s Constitution, which emphasizes individual dignity in Article II, Section 4:
Section 4. Individual dignity. The dignity of the human being is inviolable. No person shall be denied the equal protection of the laws. Neither the state nor any person, firm, corporation, or institution shall discriminate against any person in the exercise of his civil or political rights on account of race, color, sex, culture, social origin or condition, or political or religious ideas.
Deernose raised concerns about how Montana would cope if the federal government withheld money, and questioned how the law, which she called “vague and ambiguous,” would play out.
Smith said it was one of many, but unique too.
“My understanding is that this is the first of its kind to erase gender in such a weird manner,” Smith said, characterizing a wave of laws being considered throughout the country as a “festival of horrible legislation.”
He said the danger – like all legislation – is that the bill is copied, and the legal battle expands from Montana to a multi-state battle.
“Discrimination against transgender individuals itself is a suspect enterprise,” Smith said. “And if ever there was a law that discriminates against transgender people, it this because it says that they cannot live with us and we will not recognize your gender identity.”
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