Judge permanently blocks 2023 Montana law that defined sex as binary

A 2023 bill passed by the Montana Legislature that defined "sex" as binary discriminated against transgender, intersex and Two Spirit Montanans and violated their right to privacy under the state constitution, a Missoula judge ruled Tuesday.

While 2023’s Senate Bill 458 was permanently blocked from taking effect last June because the bill's title was unconstitutionally vague, Tuesday’s order from Missoula County District Court Judge Leslie Halligan found the substance of the bill violated Montanans' constitutional rights. She permanently blocked the law and others like it from being enforced.

Halligan wrote that the state’s argument — that the plaintiffs could not challenge the constitutionality of the law because they were the "rare few" to whom the definitions in SB 458 would "not squarely" apply — "would eviscerate the protections built into the Montana Constitution."

"It has never been the law in this state that a rare few, even if they are 'despised,' should lack protection under the law," Halligan wrote, citing another case.

Anna Tellez, one of the plaintiffs in the case, said the decision was a victory for gender diverse and intersex Montanans.

"The state cannot overstep its bounds and discriminate against you for arbitrary reasons as it sees fit," Tellez said in a statement. "This fits the most basic philosophy of living in Montana: mind your own business."

Chase Scheuer, a spokesperson for the Montana Attorney General's Office, said the office would appeal the decision.

"Yet again, the Montana judiciary ignored the will of Montanans and went out of its way to advance the woke agendas of their political allies," Scheuer said in a statement. "We plan to appeal this outrageous rejection of common sense."

The state had argued the plaintiffs should not have standing in the case because there was no controversy at hand, while the plaintiffs argued SB 458 violated constitutional guarantees of equal protection and privacy.

Two of the plaintiffs are intersex and were born with conditions in which they had XY chromosomes but were assigned female at birth. The judge said because SB 458 made it Montana law that there were only two sexes, the measure excluded both of them "from the definition of human beings." That caused them irreparable harm, Judge Halligan found.

Halligan wrote that under SB 458, the intersex plaintiffs could legally be denied employment for appearing as a woman because they would be considered “male," while cisgender women could not legally be denied employment for the same reason.

"In essence, the Legislature seeks to permit discrimination against a person whose sex does not align with their gender identity, believing it to be legally distinct from discrimination directed at a person on the basis of sex," the judge wrote.

Halligan noted there is a bill draft requested for this session by Sen. Carl Glimm, R-Kila, which the court said "bears remarkable similarity to SB 458." Glimm sponsored SB 458 in 2023. Halligan said the threat of harm under such bills "remains prevalent."

Kaitlin Price, a spokesperson for Republican Gov. Greg Gianforte, said in a statement the governor was disappointed the law again was struck down.

"The governor is disappointed in the court’s decision to appease the far-left instead of siding with commonsense and the law that codifies the long-recognized, commonsense, immutable, biologically-based definition of sex, male and female, while protecting people born intersex and not infringing on transgender individuals’ ability to identify with whatever gender, but not sex, they wish," Price said in an email.

The plaintiffs were represented by Upper Seven Law attorney Dimitrios Tsolakidis.

"Yesterday’s ruling ensures that the state cannot erase me from the definition of 'human being' with the stroke of a few unscientific sentences," plaintiff Susan Edwards said in a statement. "It's a great decision. It is the right decision, not only for us plaintiffs but for every Montanan’s right to privacy."