"Intellectually and Morally Indefensible": Montana Court Blocks Trans-Exclusionary Law Defining Sex
“It is the right decision, not only for us Plaintiffs but for every Montanan’s right to privacy.”
On Feb. 18, a Montana judge struck down, for the second time, a bill seeking to unconstitutionally define sex and gender under state law.
“Substituting the opinions of licensed medical professionals and individuals with that of the legislators’ own beliefs and values impermissibly requires Montanans to identify themselves based on the political ideology of legislators,” the court ruling states.
First introduced almost two years ago, Senate Bill 458 sought to define “male” and “female” sexes as exclusive, immutable categories based on the perceived chromosomal make-up of a child at birth. A group of trans, intersex and Two Spirit Montanans sued to overturn the law on the grounds that it stripped them of civil rights in “all aspects of public life” — housing, employment, healthcare and more.
The Montana Attorney General’s office, under Republican Governor Greg Gianforte, functionally argued that, because non-cisgender people are a minority of the population, the law was inconsequential. The courts denounced this assertion. “It has never been the law in this state that a rare few, even if they are ‘despised,’ should lack protection under the law,” the ruling reads.
The genetic testing required to verify the SB 458 standards of sex are a rarity. In practice, a child’s sex is decided by whoever fills out their birth certificate, and what the filer believes a child’s external sex organs indicate about their gender, chromosomes, internal sex organs and future potential for sex hormone production.
SB 458 does not seem to require the person making a gender designation for an infant to be a medical professional. Meanwhile, external sex organs do not inherently predict any of the aforementioned traits.
The ruling goes on to call SB 458 “intellectually and morally indefensible,” a nod to a 1999 case protecting abortion rights in the state.
Versions of this law, which seek to legally define and restrict a person’s sex, have circulated state legislatures in Tennessee, Florida, Alabama and Kansas. Legal scholars have noted that these kinds of bills open the floodgates of discrimination against all people, regardless of their sex or gender — not just trans and queer people.
“It applies to anyone,” said Dimitrios Tsolakidis, a staff attorney at Upper Seven Law, a nonprofit representing the plaintiffs in the SB 458 case. “If I were to go into work and I didn't express my gender in accordance with societal expectations — regardless of how I identify — this law would allow my employer to fire me and then would strip me of any kind of legal remedy to vindicate my rights.”
“Yesterday’s ruling ensures that the state cannot erase me from the definition of ‘human being’ with the stroke of a few unscientific sentences,” said one plaintiff, Susan Edwards, in a press release from Upper Seven Law. “It is the right decision, not only for us Plaintiffs but for every Montanan’s right to privacy.”
SB 458 was first overruled in 2024 due to a procedural flaw. This time around was more decisive. The courts unequivocally declared that the spirit and letter of the law violates the state consitution’s guarantees of a right to privacy and its equal protections clauses.
“Here in Montana, we have seen a deluge of anti-trans legislation that seeks to remove trans people from every aspect of daily life, time and time again,” said Representative Zooey Zephyr, a Democrat in the state legislature. “Those bills have been deemed unconstitutional. Likewise, we've seen bills brought by the Republican majority trying to limit access to abortion, or trying to ignore our constitutional duty to maintain and enhance a clean and healthful environment that is written verbatim in the constitution. Again and again, the courts have come in and said these bills are unconstitutional.”
Montana’s Governor Gianforte has come under fire in recent years for pursuing millions in taxpayer dollars in an attempt to combat constitutional challenges to state laws, which have “increased significantly” under his administration.
You can read the ruling here:
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The absurdity and audacity of arguing the ban is functionally "inconsequential" due to the small minority of the population it affects with no recognition whatsoever that this then begs the question why they are putting such an outsized amount of effort into these measures.
I love it! And the court even used the I-word, ideology, referring to "the political ideology of legislators." Exactly so.
As a refugee from northwest Wyoming who got most of her medical care in Billings, I look forward to sharing this with my former PCP, endocrinologist, and therapist, strong, smart and compassionate women, all.
Thanks for the smiles, s. baum. You are one cool cat!