The Montana Legislature tried, and failed, to define sex

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.