Skip to content
Search

Latest Stories

Top Stories

The Montana Legislature tried, and failed, to define sex

Male and female gender symbols
Hreni/Getty Images

Nelson is a retired attorney and served as an associate justice of the Montana Supreme Court from 1993 through 2012.

In 2023, the Montana State Legislature passed a bill, signed into law by the governor, that defined sex and sexuality as being either, and only, male or female. It defined “sex” in the following manner: “In human beings, there are exactly two sexes, male and female with two corresponding gametes.” The law listed some 41 sections of the Montana Code that need to be revised based on this definition.


While the bill’s direct impact was limited to just Montana, it has far reaching implications for the nation as other states are debating similar legislation.

The constitutionality of SB 458 was, not surprisingly, challenged. Missoula District Judge Shane Vanatta held that the law was unconstitutional because its subject wasn’t clear in its title as required by Montana’s Constitution.I don’t quarrel with the court’s decision; it was narrow, measured and the sort of decision that “non-activist” courts are required to, and do, make under the controlling facts and law.

Unfortunately, however, I doubt that this will be the last we hear of this matter. A similar bill will likely resurface in a new legislative session, albeit with a different title.

Sign up for The Fulcrum newsletter

Regardless of what they call the bill, the underlying problem is one of legislators willfully choosing to ignore science, and, instead, intentionally legislating on the basis of what they perceive to be Biblical doctrine and on white Christian Nationalism — as promoted by far right conservatives and the various national organizations (e.g., the American Legislative Exchange Council, the Heritage Foundation,the Federalist Society and the Alliance Defending Freedom, to name a few) that drive former President Donald Trump’s perverted value system.

In truth, by attempting to define sex and sexuality to include only sperm and egg producers, SB 458 was nothing other than a disingenuous attempt to put a legal gloss on the exact sort of discrimination that Montana’s Constitution specifically prohibits.

Article II, section 4 states:

The dignity of the human being is inviolable. ... Neither the state nor any person, firm, corporation or institution shall discriminate against any person in the exercise of his civil or political rights on account of .. .sex.

Bottom line: Discrimination based on sex is absolutely prohibited as a matter of constitutional law, and it cannot be legalized by adopting a scientifically flawed, religiously grounded statute, no matter how the title finesses it.

While the bill’s language follows Genesis 1:27, the definition is scientifically inaccurate. And, passing a statute saying otherwise doesn’t make it any less false — it’s like passing a law that says the sun rises in the west and sets in the east. It just doesn’t.

The bill defined “females” on the basis that that sex produces large, immobile eggs and “males” on the basis that that sex produces small, mobile sperm. Both definitions use the qualifier “under normal development” — which apparently disqualifies a person from being either female or male if their development is not normal or, otherwise, for whatever reason, a person who does not produce eggs or sperm. In other words, a goodly number of the members of the human race.

The Bible and the Legislature’s denial of science notwithstanding, human beings cannot be categorized into “exactly two sexes,” male or female, as the bill decreed.

Medicine and science recognize a third category of human beings under the general classification of “intersex.” An intersex human being is a person born with a combination of male and female biological traits. These individuals are born with any of several sex characteristics including chromosome patterns, gonads, reproductive or sexual anatomy or genitals that do not fit typical definitions of male and female — much less the ones in SB 458. There may be a discrepancy between internal genitals and external genitals. There exist at least 30 different intersex variations, each with its own name and description. Word limitations prevent going into these in any detail, but internet research is easy.

The causes of intersex conditions may be hormonal or chromosomal, but the important point to be noted is that intersex individuals are hardwired to be that way; that’s just the way they were born, the Bible and willful legislative ignorance to the contrary notwithstanding.

Intersex individuals simply do not fit within the black and white Biblical definitions adopted by SB 458. And the same can be said for those individuals who suffer from a condition recognized in medicine and science as gender dysphoria — i.e. the transgender folks the Legislature demonizes and loves to hate.

If one is neither male nor female according to SB 458, then that person is not included in the definition of sex. That person is an outlier, a social outcast, not even, apparently, considered a human being. And, therefore, it follows, that person is a legitimate target for legalized discrimination, demonization and hatred; the sort of scapegoat which is a hallmark of fascism.

SB 458 did not pass Constitutional muster this time. And it won’t if it comes around a second time, no matter what the Legislature calls it.

You can put lipstick on a pig, but it still walks like a pig, looks like a pig and stinks.

Read More

Donald Trump at a podium

Former President Donald Trump recently said Vice President Kamala Harris is mentally impaired.

Howard Schnapp/Newsday RM via Getty Images

We should not denigrate the mentally impaired

Schmidt is a columnist and editorial board member with the St. Louis Post-Dispatch.

Ableism, the social prejudice and discrimination of people with disabilities based on the belief that typical abilities are superior, is just plain wrong and it is also un-American.

At a recent campaign rally in Prairie du Chien, Wis., former President Donald Trump disparaged Vice President Kamala Harris, suggesting she was mentally disabled and called her “a very dumb person.”

Keep ReadingShow less
"Danger PFAS" Caution Warning Barrier Tap

Heavily Hispanic areas near Chicago are home to environmental racism.

filo/Getty Images

Hispanic neighborhoods in Chicago suffer unequal exposure to chemicals

Sharp is chief financial officer at Environmental Litigation Group, P.C., a law firm based in Birmingham, Ala., that assists individuals and communities injured by toxic exposure.

The predominantly Hispanic populations in Rosemont, Schiller Park and Bensenville, near Chicago, have long been exposed to toxic chemicals known as PFAS originating from the neighboring O'Hare Air Reserve Station, which was closed in 1999. The phenomenon of environmental racism is not new to Chicago. Sites and facilities hazardous to the environment and human health have been placed near communities predominantly populated by Hispanic and Black people in the city for years.

Keep ReadingShow less
Woman dancing

Mexican Independence Day celebration in Chicago

We must welcome in Latine unity

Marín is the co-creator and community advocate at BECOME. Rodríguez is the co-executive director of Enlace Chicago.

The Welcoming Neighborhood Listening Initiative delves into the dynamic social landscape of Chicago’s Little Village neighborhood, exploring resident perspectives on the influx of new neighbors seeking asylum. The study moves beyond traditional data collection to activate community members as leaders in driving transformative solutions. Ultimately, the report emphasizes the importance of culturally responsive training and community dialogues to foster understanding, bridge cultural divides and build a more inclusive Little Village for all.

Chicago just marked Mexican Independence Day with a reinstated celebration of El Grito in downtown and an annual parade in La Villita, a primarily Mexican neighborhood also known as Little Village. These festivities kicked off Hispanic Heritage Month, which celebrates the independence of Mexico along with Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua and Chile.

Keep ReadingShow less
Monica Harris

‘We're ignoring our common values and interests’: A conversation with Monica Harris

Berman is a distinguished fellow of practice at The Harry Frank Guggenheim Foundation, co-editor of Vital City, and co-author of "Gradual: The Case for Incremental Change in a Radical Age." This is the 10th in a series of interviews titled "The Polarization Project."

National elections in the United States tend to spark talk of “red” and “blue” America — two parallel nations divided by geography and politics, with rural and central states trending Republican and coastal and urban areas voting for Democrats.

This shorthand obscures as much as it reveals, of course. There are many blue voters in red states, and vice versa. Indeed, there is some research to suggest that the very creation of red- and blue-colored voting maps leads people to overestimate the extent of American political polarization.

Keep ReadingShow less
Three diverse professionals  in business attire smiling and posing in an office
LaylaBird/Getty Images

‘Black jobs’ slur and anti-DEI mindset are bad for business

Devlin is managing director of Open to All. Unguresan is founder of the EDGE Certified Foundation.

It’s a trend with no clear expiration date and every sign of continuing — the “Black job” meme, which began in June when former President Donald Trump said immigrants were taking “Black jobs” and “Hispanic jobs.”

In the weeks that followed, one of the more joyful iterations came when Shonda Rhimes, among the most successful television producers and screenwriters in history, posted a photo of herself on Threads wearing a T-shirt that read, “My Black Job is TV Titan.” And at the Democratic National Convention, Michelle Obama made the point that the presidency was a “Black job.”

Keep ReadingShow less