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March 14, 2023
On Monday, the Senate Finance and Claims Committee approved a bill that aims to define “sex” in Montana law, relying on an individual’s reproductive characteristics. However, uncertainties regarding the potential financial implications of the legislation remain.
Senate Bill 458, sponsored by Sen. Carl Glimm, R-Kila, passed 11-8, with two Republicans — Sens. Jeff Welborn of Dillon and Dan Salomon of Ronan — joining Democrats in opposition to the measure. The bill will now head to the full Senate for a vote.
The vote followed an impassioned plea to halt the bill’s progress from Sen. Ellie Boldman, D-Missoula, who pointed to concerns raised by two state agencies that creating a rigid definition of sex that excludes transgender and intersex people could put the state out of compliance with federal law, risking penalties and loss of funding in the process.
Boldman informed the committee on Monday that there will be numerous other bills that will undergo the legislative process in this building and he is confident that they will be approved. However, this particular bill, which spans 61 pages, is unique because it impacts multiple agencies. He emphasized that although these agencies may not have initially comprehended the full scope of the bill when they responded to the Office of Budget’s request, the Office of the Commissioner of Higher Education and the Department of Corrections immediately grasped its significance. Boldman stressed that every agency will be affected by this bill and strongly advised against passing it.
Glimm set the criticisms aside.
He informed the committee that it would be purely speculative to claim that all these circumstances would result in various legal expenses.
In February, the Senate Public Health, Welfare and Safety Committee held a hearing on the bill. During the hearing, numerous opponents expressed their concerns, stating that the bill’s exclusion of transgender and intersex individuals from the state code unfairly targets the LGBTQ+ community and fails to comprehend the intricacies of sexual expression.
“There are also all sorts of people whose reproductive and endocrine systems are not organized around the production of the gamete that would typically correlate with them,” Dr. Lauren Wilson, president of the state chapter of the American Academy of Pediatrics and a practicing physician in Missoula, told the committee in February. “These state definitions make no, zero provision for intersex people, so there are a whole bunch of people you suddenly cannot categorize. It’s not clear what their legal status would be.”
Last week, the Finance and Claims Committee, which heard the bill after it was passed in its initial committee, primarily emphasized the potential financial burden that could arise from altering references to sex in numerous sections of code.
Budget officials with the governor’s office produced a fiscal note for the Legislature that showed zero impact to the state budget. That was despite technical notes from two agencies, the Department of Corrections and the state university system, flagging “significant fiscal impact” due to possible noncompliance with federal sex discrimination laws. The budget office said in the hearing that those legal concerns fell into an unquantifiable gray area and were not included in the final fiscal note.
In its note, the DOC expressed concerns over potential lawsuits that could bring up Eighth Amendment and equal protection claims. Additionally, the agency stated that the bill would cause the state to be non-compliant with the federal Prison Rape Elimination Act and affect the state’s ability to transfer prisoners. The university system also raised concerns about the bill potentially exposing the state to challenges under Title IX.
Boldman stated on Monday during the debate that practically every agency could face federal consequences.
“The fines and penalties outlined in our federal laws are in place to enforce compliance,” she explained. “It’s not a matter of lawsuits, but rather ensuring that the state meets the funding requirements necessary for numerous agencies to receive continued financial support.”
She cited the U.S. Supreme Court’s 2020 ruling in Bostock v. Clayton County, a Georgia discrimination case involving a gay county employee. In a majority opinion authored by Justice Neil Gorsuch, the court ruled that the 1964 Civil Rights Act protects employees from discrimination based on their identity as gay or transgender.
Boldman urged her colleagues to oppose SB 458, stating that there was nothing they could do about it now that it was done.
Senate Minority Leader Pat Flowers, D-Belgrade, said the committee should do a deep dive on the bill’s fiscal impact and delay voting for the time being.
“We would be neglecting our fundamental responsibility in this committee to acknowledge fiscal impacts,” he stated on Monday, if the committee does not wait.
Nevertheless, the bill passed.
Glimm responded to Boldman’s remarks, stating that this is a matter of policy. Our objective is merely to establish a definition, without indicating its specific application. The assumption of potential lawsuits presumes a predetermined context for the use of sex. As policymakers, it is our responsibility to determine when sex or gender should be employed. Currently, the issue lies in the confusion between the two concepts.
Sen. John Esp, R-Big Timber, who chairs the committee, said those with concerns about the bill’s implications — fiscal, legal or otherwise — should raise them in the House, where the bill will travel if it passes on the Senate floor.
He recommended that all the individuals who have reached out should attend the House policy hearing and express their opinions to the committee. He emphasized that the committee’s decision is based on the information they received, which indicates no financial consequences, and that is the aspect they are considering at present.
—Arren Kimbel-Sannit
On the Clock
The full House Appropriations Committee this week is taking its crack at shaping the state budget bill, House Bill 2. Appropriations lawmakers and their counterparts on the Senate’s Finance & Claims Committee spent the first half of the session digging into the particulars of different budget sections in joint subcommittees, including education, health and infrastructure, and others. Now, with those pieces assembled into a $13.4 billion whole, the full committee is getting to work, considering a long list of amendments.
Originally, lawmakers on the committee had anticipated completing their budget-tweaking votes by midday Tuesday, however, it is taking them more time than anticipated. Once the committee wraps up their work, the budget staff will assume responsibility for creating the most significant bill of the session, which will then be discussed on the House floor.
—Eric Dietrich
Bill Report
Senate Bill 191, the flagship in a suite of proposed legislation to amend injunctive relief standards in Montana, was signed by Gov. Greg Gianforte, the governor’s office announced last Friday. The bill, sponsored by Sen. Steve Fitzpatrick, R-Great Falls, seeks to make it more difficult for plaintiffs to obtain preliminary injunctions — orders relevant in litigation against bills passed by the Legislature, among myriad other issues — by directing courts to adopt federal standards for injunctive relief.
House Bill 408, sponsored by Rep. Sue Vinton, R-Billings, passed its second vote on the House floor Monday with support from the chamber’s entire Republican caucus save one: Rep. John Fitzpatrick, R-Anaconda. The bill would increase the aggregate limit on dollar-for-dollar income tax credits for donations to public school districts and private school scholarships, and place new restrictions on the former to resolve recent issues with equitable distribution. Democrats opposed the bill, with Rep. Jim Hamilton, D-Bozeman, calling it “the worst bill ever — or at least this session.” He and several other Democrats argued HB 408 would allow certain Montanans to use the credits to effectively wipe out their tax liabilities and do nothing to increase accountability for private scholarship donations.
House Bill 407, legislation sponsored by Rep. Dave Fern, D-Whitefish, that would allow local governments to grant property tax abatements for owners who offer affordable rental housing, will live to fight another day. The bill was voted down on the House floor Monday, but Fern made a successful motion Tuesday to reconsider that vote and bring the bill back for second reading tomorrow. Fern’s motion passed 51-49.
Eye in the Capitol
As winter turns to spring at the Montana Capitol, the afternoon sun can create some visibility issues. Here, Reps. Paul Green, R-Hardin, Denley Loge, R-St. Regis, and Kenneth Walsh, R-Twin Bridges, sport sunglasses in the back row.
Heard in the Halls
“And so this is one of those acorns that could turn into a walnut tree that sustains a lot of energy in the budgeting process.”
—Rep. Bob Keenan, R-Bigfork, on a Democratic House Bill 2 amendment that would have increased appropriations for food banks. The amendment, sponsored by Rep. Jim Hamilton, D-Bozeman, failed on an 8-15 vote.
On Background
The U.S. Supreme Court’s ruling in Bostock v. Clayton County
The Price of “Sex”: For more on the fiscal note surrounding SB 458, check out this previous Capitolized edition. (Capitolized)
The full list of HB 2 amendments up for debate
