Montana bill aimed at strictly defining sex would exclude transgender people
A bill advancing through Montana’s statehouse would legally define a man as someone who produces sperm and a woman as someone who produces eggs — and apply that definition to 40 aspects of the state’s legislative code, from employment protections and school sports teams to burial records and marriage licenses.
The 60-page bill, which is being considered in the House after being passed by the state Senate on March 17, is an extreme example of a trend growing across the country this year: anti-trans bills that focus on narrowly defining sex. LGBTQ+ advocates say it’s part of an attempt to totally push transgender people out of public life by excluding them from as many areas of law as possible.
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The bill attempts to grapple with people who do not produce eggs or sperm by defining those who have “nonambiguous internal genitalia” as women and “nonambiguous external genitalia” as men. These definitions of sex are inaccurate, Wilson said. Intersex people exist who do not fit this description, despite the language referring to those who cannot produce eggs or sperm.
“They’re trying to categorize people by their reproductive capacity. There are a small number of people who produce both sperm and eggs,” she said. “So what that means is they’re essentially not people under the law in Montana.”
Depending on how Montana state agencies choose to implement the bill, if it passes into law, the state could lose federal funding up to $7.5 billion, according to a recent analysis by the state’s legislative fiscal division.
The analysis found that, overall, it is uncertain how the bill would impact state agencies or change the ways that they operate — since the legislation does not provide any direction to those agencies. But its definitions of sex run afoul of how the Biden administration has directed federal agencies to interpret Bostock v. Clayton County, the Supreme Court case that found gender identity to be a protected class of sex.
Federal laws often require states to comply with nondiscrimination laws to get federal funding, the analysis notes, and excluding transgender people may allow state or local governments to discriminate.
Ezra Ishmael Young, who teaches constitutional law at Cornell Law School, said Montana’s bill clearly violates the state’s own constitution, as well as the federal Constitution. In the 1970s, Montana added an “individual dignity” clause to its constitution — stating that “no person shall be denied the equal protection of the laws” or discriminated against by the state on the basis of sex.
Montana’s Supreme Court has held that the plain meaning of the dignity clause protects the intrinsic worth and basic humanity of its citizens — which is “directly at odds with what this bill aims to do,” Akilah Maya Deernose, staff attorney at the ACLU of Montana, told reporters at a virtual briefing on Wednesday.
“Given the scope of this law, it would make it very difficult for a trans person like myself to live my life as male in the state of Montana,” Young said. “That could chill people’s expression, it could make some people become recluses and not participate in public life because there’s not really a place for them to be themselves in public life.”