Republican lawmakers have advanced a bill in the Montana Senate to define “male” and “female” based on the function of a person’s reproductive systems over the opposition of Democrats, transgender and intersex people and some medical providers.

The bill is one of a number of Republican policies introduced this session affecting the lives of transgender and LGBTQ Montanans, including restrictions on medical care and a ban on drag shows in public places. Similar pieces of legislation are being debated in statehouses around the country, part of a broader pushback against LGBTQ civil rights and culture by conservative groups who hold different views of sex and gender.

Lawmakers gave the measure initial approval Wednesday afternoon to Senate Bill 458 in a 28-22 vote following roughly an hour of debate. A majority of lawmakers in the chamber will have to vote in favor of it again in the coming days in order to transmit the bill to the House for further consideration.

SB 458, sponsored by Sen. Carl Glimm, R-Kila, distinguishes males and females based on their production of gametes “under normal development” — a female is categorized as a person who produces a relatively immobile gamete, or egg, while a male is a person who produces small, mobile gametes, or sperm. 

The bill also states that sex is “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.”

Opponents testified against those definitions during the bill’s February hearing, saying the bill would erase recognition of transgender people and those with intersex conditions in dozens of sections of state law, including those governing birth and death records, prisons, board appointments, anti-discrimination and many more. 

Addressing lawmakers during Wednesday’s floor debate, Glimm said the bill was meant to eliminate confusion about the difference between sex and gender.

“We’ve heard bills this session about the existence of multiple genders, gender fluidity, gender transition, gender expression, transgenderism. But that’s not what this bill is about. Gender obviously means something different than biological sex. Biological sex is immutable. You can’t change it,” Glimm said. 

Glimm later agreed to support an amendment introduced by Sen. Brad Molnar, R-Laurel, to make an exception for intersex people, which passed largely along party lines. Molnar said the change is meant to account for the “1% of the population” with chromosomal combinations that differ from XX and XY. 

“There’s reproductive organs that don’t produce eggs, don’t produce sperm. Nature combines these things in many ways. We must provide equal protection under the law,” Molnar said. 

Democrats spoke against the bill, calling it discriminatory, reductive and impossible to implement in many areas of state government. 

“It erases trans people and tens of thousands of Montanans with differences in sexual development, it erases them from law. You cannot erase them from being, from their existence, from their viability,” said Sen. Mary Ann Dunwell, D-Helena. “It is going to send a big message loud and clear to the country, to the world, that Montana wants to go back to the dark ages for political purposes and not listen to medical facts.”

Republicans supporting the bill panned any suggestion of discriminatory intent, maintaining that SB 458 would bring common sense and clarity to state law.

“I’m voting for this bill, but it’s not because I hate somebody. It’s not because I want to discriminate against somebody, and it’s not because I don’t approve of your gender or how you want to live your lifestyle. That’s not what it’s about,” said Sen. Greg Hertz, R-Polson. “This bill is about a definition, and we all know how important definitions are in our legal system.”

Republican lawmakers ultimately carried the bill over the threshold, with six members of that party joining Democrats in opposition. 

SB 458 had a turbulent journey to the Senate floor over the last few weeks. Originally introduced in late February, a week and a half before a legislative deadline for most policy bills, the bill was scheduled for a late afternoon hearing before the Senate Public Health, Welfare and Safety Committee, and approved along party lines the same night. 

In the days before the transmittal deadline, SB 458 was removed from the agenda for a floor debate and instead referred to Senate Finance and Claims, a tactic by opponents to slow the bills’ progress and saddle it with a large fiscal note. 

Ultimately, state agencies offered up the opposite — the resulting fiscal note estimated a $0 impact on the state, despite analyses from the state university system and the Department of Corrections that SB 458 conflicted with federal definitions and requirements. State employees who spoke before the budget committee last week said the potential fiscal impact to the state fell into an unquantifiable gray area. 

Aside from potentially costing taxpayers money to implement the bill and even defend it in court,  LGBTQ civil rights advocates in Montana and nationwide say the legislation and other similar policies wrongly expand the role of government in order to target a marginalized group of people. 

“Weaponizing the government to try and crawl into the details of people’s bodies is not a proper use of the law. It’s coming from a concerted and coordinated effort to legislate transgender people out of existence,” said Dr. Kellan Baker, executive director of the Whitman-Walker Institute, an LGBTQ research and policy group based in Washington D.C.

“That’s the goal. To make it so impossible for trangender people to live safe and authentic lives that they all disappear,” Baker continued. “Which is of course impossible, because transgender people aren’t going anywhere and intersex people aren’t going anywhere.”

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Mara writes about health and human services stories happening in local communities, the Montana statehouse and the court system. She also produces the Shared State podcast in collaboration with MTPR and YPR. Before joining Montana Free Press, Mara worked in podcast and radio production at Slate and WNYC. She was born and raised in Helena, MT and graduated from Seattle University in 2016.