Montana’s Anti-Trans Bill: an Attempt to Legalize Discrimination

All the hullabaloo about how much or little SB458 will cost the State of Montana, if the bill is enacted, completely misses the most important flaw in this proposed piece of legislation.  In attempting to define sex and sexuality to include only sperm and egg producers, SB 458 is nothing other than a disingenuous attempt to put a legal gloss on the exact sort of discrimination that Article II, section 4 of Montana’s Constitution specifically prohibits.

Article II, section 4 states, in pertinent part:

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.

SB 458, 64-page bill, attempts to define sex and sexuality.  In pertinent part, the bill defines “sex” in the following manner: “In human beings, there are exactly two sexes, male and female with two corresponding gametes.”  Notwithstanding Genesis, 1:27, which the foregoing language follows, this definition is scientifically inaccurate–and passing a statute saying otherwise doesn’t make it any less false. Any more than does passing a law that says the sun rises in the west and sets in the east. It just doesn’t.

SB 458  defines “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, do not produce eggs or sperm.

And that brings me to why this legislation is scientifically inaccurate and flagrantly unconstitutional. The Bible, notwithstanding, human beings cannot be categorized into “exactly two sexes”, male or female, as the bill states.

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—and not 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.

To name it for what it is, SB 458 is an attempt to legalize what is unconstitutional discrimination.  Intersex individuals do not fit within the black and white Biblical definitions adopted by the bill. And the same can be said for those individuals who suffer from a condition recognized in medicine and science as gender dysphoria—the transgender folks the supermajority/Freedom Caucus 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, a legitimate target for legalized discrimination.

Legalized discrimination? It won’t pass Constitutional muster.

James C. Nelson a retired Montana Supreme Court justice. He lives in of Helena.