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March 14, 2023

The Senate Finance and Claims Committee on Monday passed legislation that would define “sex” in Montana law based on a person’s reproductive characteristics, despite open questions about the bill’s potential fiscal impact. 

Senate Bill 458, sponsored by Sen. Carl Glimm, R-Kila, passed 11-8, with two Republicans — Sens. Jeff Welborn of Dillon and Dan Salomon of Ronan — joining Democrats in opposition to the measure. The bill will now head to the full Senate for a vote. 

The vote followed an impassioned plea to halt the bill’s progress from Sen. Ellie Boldman, D-Missoula, who pointed to concerns raised by two state agencies that creating a rigid definition of sex that excludes transgender and intersex people could put the state out of compliance with federal law, risking penalties and loss of funding in the process.

“We can have a lot of other bills that are going to go through this building, and I’m sure they will pass, but this one, and the reason it’s 61 pages long, is because all of these agencies will be affected,” Boldman told the committee Monday. “And whether or not they fully understood when they responded to the Office of Budget’s request for a response, you better believe that [the Office of the Commissioner of Higher Education] and [the Department of Corrections] got it right away. I’m telling you, this will affect every agency. And this is not the one you should pass.”

Glimm set the criticisms aside.

“To say that all of this is going to cause all kinds of legal costs is purely speculation,” he told the committee.

The bill was first heard in the Senate Public Health, Welfare and Safety Committee in February, generating testimony from dozens of opponents who said the bill’s legal sidelining of transgender and intersex people from state code targets the LGBTQ+ community and misunderstands the nuances of sexual expression. 

“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,” Dr. Lauren Wilson, president of the state chapter of the American Academy of Pediatrics and a practicing physician in Missoula, told the committee in February. “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.”

In the Finance and Claims Committee, where the bill was heard last week following passage in its initial committee, the focus was on the potential financial burden that changing references to sex in dozens of sections of code could impose. 

Budget officials with the governor’s office produced a fiscal note for the Legislature that showed zero impact to the state budget. That was despite technical notes from two agencies, the Department of Corrections and the state university system, flagging “significant fiscal impact” due to possible noncompliance with federal sex discrimination laws. The budget office said in the hearing that those legal concerns fell into an unquantifiable gray area and were not included in the final fiscal note. 

DOC, for its part, said in its note that possible lawsuits could raise Eighth Amendment and equal protection claims and that the bill would take the state out of compliance with the federal Prison Rape Elimination Act. The agency also said the bill would impact the state’s ability to transfer prisoners in and out of state. The university system raised concerns about whether the bill would leave the state open to challenges under Title IX. 

During debate Monday, Boldman said almost any agency could see federal repercussions. 

“Our federal laws establish fines and penalties for noncompliance,” she said. “This isn’t about lawsuits. This is about current funding and the requirements that the state has to maintain the funding for a lot of agencies.”

She cited the U.S. Supreme Court’s 2020 ruling in Bostock v. Clayton County, a Georgia discrimination case involving a gay county employee. In a majority opinion authored by Justice Neil Gorsuch, the court ruled that the 1964 Civil Rights Act protects employees from discrimination based on their identity as gay or transgender. 

“So it’s done. There’s nothing we can do about it,” Boldman said in urging her colleagues to oppose SB 458. 

Senate Minority Leader Pat Flowers, D-Belgrade, said the committee should do a deep dive on the bill’s fiscal impact and delay voting for the time being. 

If the committee doesn’t wait, he said Monday, “we are abdicating our fundamental responsibility in this committee to note fiscal impacts.” 

Nevertheless, the bill passed. 

“This is a policy issue. All we’re doing is defining something — we’re not necessarily saying where it’s going to be used,” Glimm said in response to Boldman’s comments. “All of these assumptions of lawsuits assume where we’re going to use sex. We as policymakers need to decide where we’re going to use sex and where we’re going to use gender. The problem now is that we conflate the two.” 

Sen. John Esp, R-Big Timber, who chairs the committee, said those with concerns about the bill’s implications — fiscal, legal or otherwise — should raise them in the House, where the bill will travel if it passes on the Senate floor. 

“I would suggest those folks that have contacted you all get to the House policy hearing and let that committee know what they think, because we’re going on what we heard — zero fiscal impact — and that’s what we’re looking at today,” he said. 

—Arren Kimbel-Sannit

On the Clock

The full House Appropriations Committee this week is taking its crack at shaping the state budget bill, House Bill 2. Appropriations lawmakers and their counterparts on the Senate’s Finance & Claims Committee spent the first half of the session digging into the particulars of different budget sections in joint subcommittees, including education, health and infrastructure, and others. Now, with those pieces assembled into a $13.4 billion whole, the full committee is getting to work, considering a long list of amendments.

Lawmakers on the committee had initially hoped to be done with budget-tweaking votes by midday Tuesday, but it’s taking them longer than expected. Once the committee concludes, budget staff will take over to prepare the biggest bill of the session for debate on the House floor.

—Eric Dietrich

Bill Report

Senate Bill 191, the flagship in a suite of proposed legislation to amend injunctive relief standards in Montana, was signed by Gov. Greg Gianforte, the governor’s office announced last Friday. The bill, sponsored by Sen. Steve Fitzpatrick, R-Great Falls, seeks to make it more difficult for plaintiffs to obtain preliminary injunctions — orders relevant in litigation against bills passed by the Legislature, among myriad other issues — by directing courts to adopt federal standards for injunctive relief. 

House Bill 408, sponsored by Rep. Sue Vinton, R-Billings, passed its second vote on the House floor Monday with support from the chamber’s entire Republican caucus save one: Rep. John Fitzpatrick, R-Anaconda. The bill would increase the aggregate limit on dollar-for-dollar income tax credits for donations to public school districts and private school scholarships, and place new restrictions on the former to resolve recent issues with equitable distribution. Democrats opposed the bill, with Rep. Jim Hamilton, D-Bozeman, calling it “the worst bill ever — or at least this session.” He and several other Democrats argued HB 408 would allow certain Montanans to use the credits to effectively wipe out their tax liabilities and do nothing to increase accountability for private scholarship donations.

House Bill 407legislation sponsored by Rep. Dave Fern, D-Whitefish, that would allow local governments to grant property tax abatements for owners who offer affordable rental housing, will live to fight another day. The bill was voted down on the House floor Monday, but Fern made a successful motion Tuesday to reconsider that vote and bring the bill back for second reading tomorrow. Fern’s motion passed 51-49. 

Eye in the Capitol

Credit: Courtesy of Montana Public Access Network

As winter turns to spring at the Montana Capitol, the afternoon sun can create some visibility issues. Here, Reps. Paul Green, R-HardinDenley Loge, R-St. Regis, and Kenneth Walsh, R-Twin Bridges, sport sunglasses in the back row.

Heard in the Halls

“And so this is one of those acorns that could turn into a walnut tree that sustains a lot of energy in the budgeting process.” 

Rep. Bob Keenan, R-Bigfork, on a Democratic House Bill 2 amendment that would have increased appropriations for food banks. The amendment, sponsored by Rep. Jim Hamilton, D-Bozeman, failed on an 8-15 vote.

On Background

The U.S. Supreme Court’s ruling in Bostock v. Clayton County 

The Price of “Sex”: For more on the fiscal note surrounding SB 458, check out this previous Capitolized edition. (Capitolized)

The full list of HB 2 amendments up for debate