In May 2023, the Montana State Legislature set out to dismantle decades of legal precedent protecting Montanans from sex discrimination. Claiming that judges have improperly conflated sex and gender, and apparently outraged that existing laws protect individuals whose gender does not align neatly with legislators’ expectations, the Legislature passed Senate Bill 458 (“SB 458”) to remove those protections. SB 458 defines “female,” “male,” and “sex” by reference to reproductive capacity—i.e., sex chromosomes and gametes—and incorporates these new definitions throughout the entire Montana Code Annotated.
SB 458’s definitions are unscientific and unworkable. And by supplanting the common-sense meaning of these terms, SB 458 improperly categorizes many Montanans, excludes others from legal recognition entirely, and deprives them of the benefits and protections of myriad state laws. Laws that prohibit sex-based discrimination do so whether that discrimination is based on perceived biological differences between sexes or arises from the ways people behave, present, and identify in relation to their sex. SB 458 targets and excludes Plaintiffs—a group of Two Spirit, intersex, and transgender individuals and organizations—from legal protection and from recognized social and political communities.
SB 458 infringes on Montanans’ constitutional rights and fails any level of scrutiny.