SB 458, a 64-page bill recently passed by the 2023 Legislature and signed into law by the governor, sought to define sex and sexuality as strictly male or female. It narrowly defined “sex” as “exactly two sexes, male and female with two corresponding gametes,” sparking a constitutional challenge due to unclear subject matter in the title. The bill was ultimately deemed unconstitutional by Missoula District Court Judge Shane Vanatta based on Montana’s Constitutional requirements.
While the decision was just, the issue may reappear in future legislative sessions with a different approach. The core problem lies in legislators disregarding science in favor of religious ideologies, notably influenced by the Trump cult and organizations like the American Legislative Exchange Council (ALEC), the Heritage Foundation, the Federalist Society, and Alliance Defending Freedom.
Attempting to legally enforce discrimination under the guise of defining sex and sexuality as strictly sperm and egg producers, as done in SB 458, contradicts Article II, section 4 of Montana’s Constitution. This section unequivocally prohibits discrimination based on sex, rendering any legislative attempts to the contrary invalid.
Science recognizes a third category of individuals known as intersex, born with a blend of male and female biological traits, challenging binary definitions imposed by SB 458. Similarly, gender dysphoria individuals defy the bill’s narrow definitions and face stigmatization. Such legislation cannot stand in the face of biological diversity and constitutional protections.
Attempts to redefine sex through legislation remain futile and unconstitutional, undermining the variety and complexity of human biology. SB 458’s failure in court sends a clear message that discrimination disguised as law will not be tolerated, regardless of future attempts under different titles.
James C. Nelson of Helena is a retired Montana Supreme Court justice.
