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

An illustration of diverse people around a heart with the design of the American flag.
An illustration of diverse people around a heart with the design of the American flag.
Getty Images, wildpixel

The Next Hundred Days: America's Latest Test of Democracy

For decades, we have watched America wrestle with its demons. Sometimes, she has successfully pinned them down. Other times, the demons have slipped beyond her grasp. Yet, America has always remained in the ring. There is no difference right now, and the stakes couldn't be higher.

Across America, from small-town council meetings to state legislatures, there's a coordinated effort to roll back the clock on civil rights, geopolitical relations, and the global economy. It's not subtle, and it's not accidental. The targeting of immigrants and citizens of color has become so normalized that we risk becoming numb to it. For example, what happened in Springfield, Ohio, late last year? When national politicians started pushing rhetoric against Haitian immigrants, it wasn't just local politics at play. It was a test balloon, a preview of talking points soon echoed in halls of government and media outlets nationwide. Thus, this is how discrimination, intolerance, and blatant hate go mainstream or viral—it starts small, tests the waters, and spreads like a virus through our body politic and social system.

Keep ReadingShow less
Two groups of people approaching each other over a chasm, ready to shake hands.

Two groups of people approaching each other over a chasm, ready to shake hands.

Getty Images, timsa

The Impact of Trump’s Executive Actions: Efforts To Eliminate DEI

This essay is part of a series by Lawyers Defending American Democracy (LDAD) explaining in practical terms what the new administration’s executive orders and other official actions mean for all of us. Virtually all of these actions spring from the pages of Project 2025, the administration's 900-page blueprint for government action over the next four years. The Project 2025 agenda should concern all of us, as it tracks strategies already implemented in countries such as Hungary to erode democratic norms and adopt authoritarian approaches to governing.

Project 2025’s stated intent to move quickly to “dismantle” the federal government will strip the public of important protections against excessive presidential power and provide big corporations with enormous opportunities to profit by preying on America's households.

Keep ReadingShow less
Future of the National Museum of the American Latino is Uncertain

PRESENTE! A Latino History of the United States

Credit: National Museum of the American Latino

Future of the National Museum of the American Latino is Uncertain

The American Museum of the Latino faces more hurdles after over two decades of advocacy.

Congress passed legislation to allow for the creation of the Museum, along with the American Women’s History Museum, as part of the Smithsonian Institution in an online format. Five years later, new legislation introduced by Nicole Malliotakis (R-N.Y.) wants to build a physical museum for both the Latino and women’s museums but might face pushback due to a new executive order signed by President Donald Trump.

Keep ReadingShow less
Fairness, Not Stigma, for Transgender Athletes

People running.

Getty Images, Pavel1964

Fairness, Not Stigma, for Transgender Athletes

President Trump’s campaign and allies spent $21 million of campaign spending on attack ads against transgender people. With that level of spending, I was shocked to find out it was not a top concern for voters of either party, but it continued to prevail as a campaign priority.

Opponents of transgender participation in sports continue to voice their opinions, three months into the Trump presidency. Just last month, the Trump administration suspended $175 million in federal funding to Penn State over a transgender swimmer. $175 million is a bit dramatic over one swimmer, or in the case of the entire NCAA, fewer than 10 athletes. Even Governor Gavin Newsom was recently under fire for sharing his views on his podcast. Others, like Rep. Nancy Mace, have also caught on to the mediagenic nature of transphobia right now. “You want penises in women's bathrooms, and I'm not going to have it,” she said in a U.S. House hearing last month. I had no clue who Nancy Mace was prior to her notorious views on LGBTQ+ rights. Frankly, her flip from being a supporter of LGBTQ+ rights to shouting “Tr**ny” in a hearing seems less like a change of opinion and more of a cry for attention.

Keep ReadingShow less