State could lose “any, all or none” of $7.5 billion federal special revenue authority if ‘sex’ definition is enacted
A deep-dive fiscal note requested by legislative Democrats and distributed Friday says Montana could lose “any, all or none” of its $7.5 billion federal special revenue authority — federal grants, in other words — if Senate Bill 458, legislation to define “sex” in Montana law, is enacted.
The bill, sponsored by Sen. Carl Glimm, R-Kila, inserts a definition of sex based on a person’s reproductive characteristics into more than 40 sections of state code — necessary, Glimm says, in order to clear up confusion between “sex” and “gender” in statute.
But critics of the bill say it will effectively eliminate legal recognition in the state of transgender, nonbinary and intersex people, branding it as another attempt to restrict the expression of LGBGT+ people in Montana. Outside of the policy itself, opponents of the bill have also warned that its wide-reaching nature could generate a substantial logistical cost for the state as well as jeopardize federal funding due to potential conflicts with anti-discrimination laws.
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The new fiscal estimate comes with a substantial footnote laying out case law and uncertainty about how the bill would be implemented.
The basic conflict is this: “The definitions provided in SB 458 do not appear to have any impact on the inclusion of sexual orientation under the protected class of sex, but may be an issue when considering gender identity since the definitions rely on biological and reproductive elements of a human being rather than an individual’s subjective identity as any gender,” the note states. “Therefore, under the SB 458 definitions, a transgender individual may be required to only identify as either male or female based on biology, rather than their preferred gender under Montana statutes that use the words ‘sex,’ ‘male,’ or ‘female.’”
And, as the other half of the equation: “Federal laws and contracts often require a state’s compliance with non-discrimination laws as a condition of federal funding.”