Lawyers deliver oral arguments in case against law defining 'sex' as binary

The future of a Montana law that defines sex as binary based on chromosome and reproductive organs could soon be decided by a Missoula judge.

Lawyers from the ACLU of Montana and the state Attorney General’s Office gave oral arguments in front of Judge Shane Vannatta of Missoula County District Court on Tuesday. Vannatta said the court would make a ruling as soon as possible. A ruling in favor of the plaintiffs, the ACLU, would void the law without going to trial. If Vannatta does not grant the summary judgment, the case goes to trial.

Senate Bill 458, sponsored by Sen. Carl Glimm, R-Kila, during the 2023 session, modified more than three dozen sections of state code that reference “sex” to explicitly define the term as male or female. Under the legislation, a female must produce eggs, and a male must produce sperm.

Opponents during the session voiced concern that the bill essentially wrote transgender and intersex people out of state law. They cautioned that it would result in discrimination and legally incorrectly define people by limiting their choices for "sex" to two options.

Gender refers to internal and social identity. It can correspond with sex, but it is not the same. Gender is based on social constructs that change over time and vary by society. Sex refers to biological characteristics like chromosomes as well as hormones or reproductive anatomy that can be medically altered.

SB 458 includes no mention of gender other than to say that sex is determined without regard to an individual’s “subjective experience of gender.”

The ACLU of Montana filed a lawsuit challenging the law on the grounds that it violates the Montana Constitution. It also filed a motion for summary judgment, which would allow the court to declare the law void without going to trial.

Kyle Gray from Holland & Hart argued on behalf of the plaintiffs. The crux of the case is that SB 458 violates something known as the single subject rule. Montana’s Constitution requires that all bills, with few exceptions, only deal with one main issue. That issue must be clearly stated in the title of a bill so that members of the public and legislators can reasonably know what it does.

“You have to be specific in what concept you’re dealing with, and that just did not happen in this bill,” Gray said. “It’s a poster boy for violating the single subject clearly expressed in the title rule.”

Plaintiffs said the bill’s title — “an act generally revising the laws to provide a common definition for the word ‘sex’ when referring to a human” — does not specify what the legislation goes on to discuss.

"Sex" could mean sexual intercourse. It could also mean reproductive body parts that determine male or female, but it’s not intrinsically limited to those two categories, Gray asserted.

SB 458 goes on to impact a slew of state codes with potentially significant implications with its new definition — things like building codes, discrimination rules, certain medical tests and more — but the average person can’t be expected to know that from the title, according to the plaintiffs.

“I don’t think you would know from reading this that it has something to do with transgender people or intersex people, for example,” Gray said. “If you are going to be talking about this issue, if you are adopting a new or different or nuanced definition of sex as a common definition for what the law is going to require, you have to define what it is.”

According to the state, represented on Tuesday by Thane Johnson and Alwyn Lansing from the Attorney General’s Office, SB 458 clears the legal threshold for the single statute rule because "sex" is already written into Montana code and case law as referring to male and female, and this law simply updates the definition more robustly in other codes to reflect “modern times.”

“There’s no way a title can rule out all other exceptions,” Johnson said, asserting that the title as written adequately signals to the public what the bill is about. “Plaintiffs' argument would lead to absurd results because it would fill up pages if it has to rule out all other subjects.”

One way around the single subject rule would be for SB 458 to qualify as one of the few exemptions.

Johnson says the law should qualify for the general revision exemption, asserting that by including the phrase “an act generally revising the laws” in the title, the state gives itself an out, not having to include all the particulars of the bill that follow in the title.

He said that all the statutes impacted by SB 458’s definition of “sex” were written long ago, and that the legislation simply seeks to provide a general revision to existing code.

Plaintiffs countered that if it were as easy as adding a single phrase to laws, everyone would do it to escape legal scrutiny. That would make vast amounts of legislation considered as exceptions to the single subject requirement, and the rule would carry no weight.

“You can’t draft out, with a few words, any responsibility,” Gray said.