Despite opposition from Democrats, transgender and intersex individuals, as well as some medical providers, Republican lawmakers in the Montana Senate have moved forward with a bill aiming to establish the definitions of “male” and “female” based on an individual’s reproductive system function.
The bill is one of a number of Republican policies introduced this session affecting the lives of transgender and LGBTQ Montanans, including restrictions on medical care and a ban on drag shows in public places. Similar pieces of legislation are being debated in statehouses around the country, part of a broader pushback against LGBTQ civil rights and culture by conservative groups who hold different views of sex and gender.
Lawmakers gave the measure initial approval Wednesday afternoon to Senate Bill 458 in a 28-22 vote following roughly an hour of debate. A majority of lawmakers in the chamber will have to vote in favor of it again in the coming days in order to transmit the bill to the House for further consideration.
SB 458, sponsored by Sen. Carl Glimm, R-Kila, distinguishes males and females based on their production of gametes “under normal development” — a female is categorized as a person who produces a relatively immobile gamete, or egg, while a male is a person who produces small, mobile gametes, or sperm.
The bill additionally affirms that sex is determined by biological indicators such as sex chromosomes, gonads, and unambiguous internal and external genitalia observed at birth. This definition does not consider an individual’s psychological, chosen, or subjective understanding of gender.
Opponents testified against those definitions during the bill’s February hearing, saying the bill would erase recognition of transgender people and those with intersex conditions in dozens of sections of state law, including those governing birth and death records, prisons, board appointments, anti-discrimination and many more.
During the floor debate on Wednesday, Glimm addressed lawmakers and highlighted that the purpose of the bill was to clarify the distinction between sex and gender, aiming to eliminate any confusion.
According to Glimm, the bills discussed during this session have covered various topics related to gender, such as multiple genders, gender fluidity, gender transition, gender expression, and transgenderism. However, the focus of this particular bill is distinct. Glimm emphasizes that gender has a different meaning than biological sex, which remains unchangeable.
Glimm later agreed to support an amendment introduced by Sen. Brad Molnar, R-Laurel, to make an exception for intersex people, which passed largely along party lines. Molnar said the change is meant to account for the “1% of the population” with chromosomal combinations that differ from XX and XY.
Molnar stated that there are reproductive organs that do not produce eggs or sperm and nature has various combinations of these. Molnar emphasized the importance of granting equal protection under the law.
The bill received criticism from Democrats who denounced it as discriminatory, reductive, and unfeasible to implement across various areas of state government.
“It erases trans people and tens of thousands of Montanans with differences in sexual development, it erases them from law. You cannot erase them from being, from their existence, from their viability,” said Sen. Mary Ann Dunwell, D-Helena. “It is going to send a big message loud and clear to the country, to the world, that Montana wants to go back to the dark ages for political purposes and not listen to medical facts.”
Republicans who endorsed the bill dismissed any claims of discriminatory intent, arguing that SB 458 would simply introduce practicality and coherence into state legislation.
“I’m voting for this bill, but 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. That’s not what it’s about,” said Sen. Greg Hertz, R-Polson. “This bill is about a definition, and we all know how important definitions are in our legal system.”
Six members of the Republican party joined the Democrats in opposition, but ultimately the bill was passed by Republican lawmakers.
Over the past few weeks, SB 458 encountered numerous challenges on its way to the Senate floor. It was initially presented in late February, just a week and a half before the deadline for most policy bills. The bill faced a hearing before the Senate Public Health, Welfare and Safety Committee in the late afternoon and was subsequently passed with votes falling along party lines on the same night.
Before the transmittal deadline, SB 458 was taken off the agenda for a floor debate and instead directed to Senate Finance and Claims. This move was employed by opponents to hinder the bill’s advancement and burden it with a significant fiscal note.
Ultimately, state agencies offered up the opposite — the resulting fiscal note estimated a $0 impact on the state, despite analyses from the state university system and the Department of Corrections that SB 458 conflicted with federal definitions and requirements. State employees who spoke before the budget committee last week said the potential fiscal impact to the state fell into an unquantifiable gray area.
LGBTQ civil rights advocates in Montana and across the country argue that the bill and similar policies erroneously increase government intervention and expenditure, potentially burdening taxpayers. These measures unjustly target a marginalized community.
Dr. Kellan Baker, executive director of the Whitman-Walker Institute, an LGBTQ research and policy group based in Washington D.C., stated that utilizing the government as a tool to intrude into individuals’ personal bodily matters is an inappropriate application of the law. He further pointed out that this approach stems from a deliberate and synchronized endeavor to enact legislation with the aim of erasing the existence of transgender individuals.
Baker continued, stating that the objective is to create such challenging conditions for transgender individuals that they are unable to lead secure and genuine lives, ultimately hoping for their disappearance. However, Baker acknowledged the impossibility of this goal, as transgender and intersex individuals are an integral part of society and cannot be eradicated.
