A bill to create a rigid definition of “sex,” boxing out legal recognition of intersex, nonbinary and transgender people in far-flung references across state law, passed a Senate public health committee late Monday after more than an hour of testimony from opposing sides.
The hearing for Senate Bill 458, originally slated for mid-afternoon, did not begin until roughly 6 p.m., after lawmakers worked through a stack of bills under pressure to meet the Friday transmittal deadline. Despite the delay, the hearing received testimony from nearly 50 people and showcased another instance this session in which bills negatively impacting LGBTQ people brought out many more opponents than proponents, with six people speaking in favor of the bill and more than 40 testifying against.
Lawmakers on the Republican-majority committee voted to pass the bill with minimal amendments just after 9 p.m. All six Republicans voted in favor and all three Democrats voted against. A substitute motion to table the bill made by Sen. Jen Gross, D-Billings, was rejected without discussion by the committee chair, Sen. Tom McGillvray, R-Billings.
SB 458, sponsored by Sen. Carl Glimm, R-Kila, would define sex as “the organization of the body and gametes for reproduction in human beings and other organisms,” specifying that humans have “exactly two sexes, male and female, with two corresponding gametes. The sexes are determined by the biological indication of male or female, including sex chromosomes, gonads, and nonambiguous internal and external genitalia present at birth, without regard to an individual’s psychological, chosen, or subjective experience of gender.”
The bill also describes “female” as a human who, under “normal development,” produces “relatively large, relatively immobile gamete, or egg,” and defines the term “male” as a human who “under normal development, produces small, mobile gametes, or sperm.”
The bill was conceived and revised by Jeff Laszloffy, president of the conservative religious group the Montana Family Foundation, according to SB 458’s drafting file.
In Monday night comments to the Senate Public Health, Welfare and Safety Committee, Glimm said the bill seeks to distinguish sex from gender, the first of which he argued is “immutable” while the latter is a social construct.
“We’ve heard bills this session about the purported existence of multiple genders, gender fluidity, gender expression and transgenderism. That’s not what this bill is about,” Glimm told lawmakers. “Biological sex is immutable. You can’t change it.”
Transgender, intersex, nonbinary and two spirit Montanans and their allies strongly disagreed with that interpretation during the Monday hearing. The bill, they said, creates a false and reductive definition of sex that ignores intersex people and denies any relationship between gender and sex that contributes to trans and nonbinary identities — including how a person is defined on legal documents like drivers licenses, birth certificates and death certificates.
“It targets us from cradle to grave,” said Rep. Zooey Zephyr, D-Missoula, one of the Legislature’s first openly transgender members. “This runs counter to the truth of mine, which is I live my life as a woman. I live it when I go to bars, when I call on the phone and when I am in this body … and this bill runs counter to that. It is rash, it is ill thought out, it is untimely and it is not right for Montana.”
In testimony in favor of the bill, proponents expressly mentioned their interest in removing legal and social validation of transgender people in sports, schools and other public spaces by adhering to a strict, reproductive-based interpretation of sex.
“Here are a few things that are at stake in this debate. First, fair athletic competition separated by sex. Second, the freedom of women to have private spaces such as locker rooms and bathrooms. Third, the safety of women in prisons and domestic abuse shelters. And fourth, protection against gender ideology in public school instruction and programming,” said Jay Richards, a representative of the national Heritage Foundation. “To preserve these goods, Montana needs to anchor its legal definition of sex in the solid ground of biological facts.”
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Opponents presented a more nuanced description of sex, one that accounted for the variations in development experienced by intersex people. Dr. Lauren Wilson, president of the state chapter of the American Academy of Pediatrics and a practicing physician in Missoula, recounted going to deliveries in which a baby’s sex was not apparent based on external characteristics. Many other people, she said, see changes in their sexual development over time.
“There are also all sorts of people whose reproductive and endocrine systems are not organized around the production of the gamete that would typically correlate with them,” Wilson said. “These state definitions make no, zero provision for intersex people, so there are a whole bunch of people you suddenly cannot categorize. It’s not clear what their legal status would be.”
Many other opponents said the bill would misrepresent their legal identities, force them to live with incongruent documents, and threaten their physical safety when having to share identification that does not align with their external presentation. At its core, said Anna Louise Peterson, a licensed clinical professional counselor in Montana, SB 458 appears intended “to deny transgender Montanans the right to a coherent and public existence.”
“It won’t work. We will continue to exist. We will continue to be your neighbors. We will continue to move through the world beside you,” Peterson said. “SB 458 will not erase us, but it will render us unsafe in myriad ways that if you are not transgender yourself, you cannot begin to imagine.”
McGillvray allocated an hour for the SB 458 hearing, scheduled last in a lineup of four policies Monday afternoon and evening. Citing the committee’s late night and long list of bills to vote on, McGillvray often asked opponents to hurry their testimony and avoid repeating what others had said. Online proponents were asked to state only their name and stance on the bill.
The late schedule and condensed time frame frustrated many opponents, adding insult to what they already described as an unnecessary and discriminatory bill.
“I think it’s a real bummer that we all have to be here,” said Ray Gordon, a trans nonbinary Missoula resident who described SB 458 as part of a historical lineage of anti-LGBTQ policies. “I’m a young person. Like, I’m 22. And it sucks to have to come here and talk about this again on a Monday. I’ve been sitting here for four hours waiting to talk to you about this. This bill, despite what [Sen. Glimm] is saying, is directly harming trans and nonbinary, two spirit, intersex people. It is baseless. It doesn’t make any sense.”
The bill has not yet been scheduled for debate and an initial vote on the Senate floor.
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