Montana judge strikes down law defining ‘sex’ as ‘male and female’ 

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CNA Staff, Jun 27, 2024 / 17:45 pm (CNA).

A judge in Montana has struck down a state statute that says “there are exactly two sexes, male and female,” setting up a possible appeal. 

The judge found that the title of the bill that created the law isn’t specific enough to pass muster under the state constitution because it doesn’t say whether the word “sex” refers to sexual intercourse or the two main categories of human beings based on reproductive functions, according to the Associated Press.

“The title does not give general notice of the character of the legislation in a way that guards against deceptive or misleading titles,” wrote Judge Shane Vannatta, a state district court judge. The long title of the bill begins “An Act Generally Revising the Laws to Provide a Common Definition for the Word Sex When Referring to a Human …” 

Vannatta is the state’s first openly homosexual judge, according to the American Bar Association. He was appointed in 2019 by then-Gov. Steve Bullock, a Democrat. His appointment was confirmed by local voters in the November 2020 state election. 

The judge’s decision drew objections from the press secretary of the current governor, Greg Gianforte, a Republican who signed the bill into law in May 2023. 

“Words matter. And this administration is committed to ensuring words have meaning, unlike this judge, who apparently needs a dictionary to discern the difference between a noun and a verb,” said Sean Southard, director of communications for the governor, in an email message to CNA.

“The law codified the long-recognized, commonsense, immutable, biologically-based definition of sex, male and female. The governor is proud of the law he signed,” Southard said. 

A spokesman for the American Civil Liberties Union of Montana, which opposes the legislation, called the judge’s ruling “an important vindication of the safeguards that the Montana Constitution places on legislative enactments,” according to the Associated Press. 

The law defines “male” as a “a member of the human species” who has XY chromosomes and produces sperm. It defines “female” as having XX chromosomes and producing eggs. 

It defines “sex” as “the organization of the body parts and gametes” — a word that refers to sperm and eggs — “for reproduction in human beings and other organisms.” It also states: “In human beings, there are exactly two sexes, male and female” and that the sexes are “determined by the biological and genetic indication of male or female,” and “without regard to an individual’s psychological, behavioral, social, chosen, or subjective experience of gender.” 

The point of the bill, said its principal sponsor, state Sen. Carl Glimm, R-Kila, is to avoid confusion in state law.

“Today, there are some, including judges, who conflate the terms ‘sex’ and ‘gender,’” Glimm said during a Montana House Judiciary Committee hearing in April 2023. 

Sex, he explained, is unchangeable, while gender may refer to how a person identifies. 

“Public policies and laws should never be ambiguous,” Glimm said. “To the extent possible, we should draw bright, clear lines. And in this case, we need to draw a clear distinction between sex and gender, and that’s what this bill does.”

Jeff Laszloffy, president of the Montana Family Foundation, noted that a U.S. Supreme Court justice, Ketanji Brown Jackson, drew widespread criticism during her confirmation hearing in October 2022 when she refused to define what a woman is, but he said that defining terms is a job for legislators, not judges. 

“As policymakers, you know that definitions are important if we’re going to have rational, intelligent debates and clear laws,” Laszloffy said. 

He said a Montana state judge in April 2022 conflated the terms “sex” and “gender” while striking down a state law that required birth certificates to state the sex of a person, as opposed to the gender with which the person identifies, unless the person undergoes a surgical procedure. 

An opponent of the bill, S.K. Rossi of the Human Rights Campaign, described it during the legislative committee hearing as “an attempt to erase trans, nonbinary, and two-spirit people from the code, thereby removing the rights, privileges, and considerations that trans, nonbinary, and two-spirit people would have under the law.” 

The term “two-spirit” refers to an alternative gender status. 

Plaintiffs who sued to try to overturn the law include Montana residents who identify as transgender, nonbinary, and intersex, according to the Associated Press. The judge did not address the plaintiffs’ substantive claims that the law would deny them the legal protections they are entitled to, according to the Associated Press. 

The judge issued the decision in the state’s Fourth Judicial District, which covers Missoula County, on Tuesday, June 25, according to the Associated Press, which also reported that the state attorney general’s office plans to continue to defend the law. 

A spokesman for the state attorney general’s office could not be reached by deadline on Thursday.