Sen. Carl Glimm, R-Kila speaks during the 2023 Legislative Session. (Photo by Nicole Girten/Daily Montanan)
A bill to redefine sex in Montana law, which closely resembles legislation struck down from last session, was heard in the Senate Judiciary Committee on Tuesday morning.
Senate Bill 437, brought by Sen. Carl Glimm, R-Kila, is 68 pages and seeks to redefine the term “sex” across a large swath of Montana laws — and builds on a bill struck down by two different judges.
It moved forward following a 5-3 vote in the Senate Judiciary Committee along party lines.
“In Montana, biological sex is immutable,” Glimm said in committee. “You can’t change it. There are only two biological sexes. You may claim to be able to change your gender or express your gender in a different way, but you can never change your biological sex.”
In 2024, Missoula County District Court Judge Shane Vannatta ruled Senate Bill 458, a similar bill sponsored by Glimm in 2023, was unconstitutional because its subject wasn’t clear in the bill’s title.
Glimm addressed that, too.
“The first challenge, the judge from Missoula said that the title of the bill was confusing. So we’ve addressed that,” Glimm said. “We’ve made the title simple enough that even a judge from Missoula can understand it.”
Two weeks ago, Missoula County District Court Judge Leslie Halligan struck down that same law for its contents rather than its title, saying it erased transgender and intersex Montanans.
The new bill, SB 437, is specific in its title: “An act for the codification and general revision of the laws relating to the definition for the words sex, female, and male when referring to a human; providing that the definition of sex refers to biological sex and not gender identity or sexual intercourse; providing that the definition of sex is limited to two types of sexes which are referred to as male and female; providing that the definitions of male and female refer to biological sex and not subjective gender identity.”
The bill would define a female as someone who has XX chromosomes and “would produce relatively large, relatively immobile gametes, or eggs, during her life cycle.” It further adds a caveat, “An individual who would otherwise fall within this definition, but for a biological or genetic condition, is female.”
Meanwhile, the bill would define male as someone who has “XY chromosomes and produces or would produce small, mobile gametes, or sperm, during his life cycle.” Similar to the definition for female, it adds a caveat as well: “An individual who would otherwise fall within this definition, but for a biological or genetic condition, is male.”
It did have some support, including from the Alliance Defending Freedom, a conservative Christian legal advocacy group, which claims the “homosexual agenda” will destroy both Christianity and society.
“Number one, this bill aligns with what we’re seeing the federal government do,” said Matt Sharp, senior counsel for the Alliance Defending Freedom. “On February 19, the U.S. Department of Health and Human Services issued guidance reaffirming that sex refers to a person’s immutable biological classification as male or female, and provided definitions consistent with that.”
In his closing statement for the bill, Glimm said his legislation wasn’t denying anyone anything.
“We’re not denying anyone’s existence,” Glimm told the committee. “It’s just biology, male and female, there are anomalies, but even those will fit into one of these two categories because of the definition that we’re going to use. I look forward to explaining that new definition in a floor amendment.”
Khadija Davis, an ACLU Montana representative who testified against the bill, said that’s exactly what the legislation would do.
“This bill would force transgender people to live a lie,” Davis said. “And deny who they are by disclosing the sex they were assigned at birth on documents like a driver’s license, marriage license and burial paperwork.”
She added: “This bill also completely erases the reality of intersex and nonbinary people. The existence of trans people is not new, but this new outsized focus on their lives is meant to spread fear and anxiety.”
The bill would force intersex and transgender people in the state to identify as the sex they were assigned when they were born, a specific issue brought by plaintiffs in a lawsuit against SB 458.
One person in the suit had an XY pattern, which under both the struck-down bill and Glimm’s newly introduced legislation, would identify them as a biological male. The person, though, has female genitalia and identifies as a woman. She’d be forced to identify as a male on her wedding license.
Planned Parenthood estimates about one in 100 people are born intersex. This can include someone with genitals that do not correspond with their internal hormones or sex organs.
Lynne Foss, a pediatric nurse practitioner and representing the Montana Chapter of the American Academy of Pediatrics, spoke to this issue in a comment.
“Some people have XY, but they appear to be female, and their reproductive and endocrine systems are a mixture of what one would consider male and female, and this is often not identified at birth, and instead is often identified at puberty,” Foss said. “And there are other people that have androgen insensitivity and are typically XY, but they do not develop male external genitalia.”
Some people can be intersex and might not be aware. In one example, Scientific American reported a clinical geneticist’s account of a patient pregnant with her third child who discovered at age 46 part of her body was “chromosomally male.”
Stigmas around intersex people have long been an issue for that community, and one 2003 study in The Endocrinologist stated, “intersex patients have frequently been subject to repeated genital examinations which create a feeling of freakishness and unacceptableness.”
A more recent study in 2022 International Journal of Impotence Research delved into the topic of “surgical intervention” at young ages, as well as public understanding of intersex issues.
It found, “Whilst many laypeople do consider intersex and transgender to be analogous (or wrongly consider them identical), those laypeople who are most likely to support intersex human rights are also those who endorse the gender binary the least.”
Republican leadership applauded the bill’s passage out of judiciary.
“This legislation helps to deliver on Senate Republicans’ promise to stand up for Montana values, protect our women and girls, and return sanity to our state government,” Senate President Matt Regier, R-Kalispell, said in a statement.