The new bill, SB 437 appears to be an attempt to erase trans people and mandate discrimination against them as well as rampant sex segregation, reflecting the prior bill- SB 458 from 2023, receiving legal challenges.
By: Artemis T. Douglas
A widespread discrimination and erasure law is on hold in Montana. The legislation, SB 437, was passed back in April of this year. Its provisions aggressively write trans and non-binary existence out of state law, and would change 66 sections of existing state code to achieve its aims.
Editor's Note: Today's article by The Needle appears to be the first coverage of SB 437 from a trans-focused outlet- we couldn't find evidence that Assigned Media, Trans News Network, Erin Reed, or any others had covered this piece of legislation. The only prior coverage we found is cited below, from local Montana outlets The Daily Montanan and KTVH.
The partisan bill is an unfortunate case of clever lawfare by Republicans.
A prior piece of legislation, SB 458 from 2023, was ruled unconstitutional for erasing intersex Montanans from the definition of “human.”
The imprecise language previously used by SB 458 was cited in the judge’s ruling.
Per the ACLU, the judge’s ruling stated, “the title is not clear as to what version of the word ‘sex’ the legislature is intending ‘to provide a common definition.’ It is from the body of SB 458 that we learn that the version of the word ‘sex ‘ is the one related to gender. However, the title does not reflect this as required.”
However, SB 437 appears to be an attempt to reflect the judge’s ruling as it uses much more precise language.
From the bill’s summary as written by the Montana legislature, it mandates that “the definition of sex refers to biological sex and not gender identity or sexual intercourse” and further intends to be “clarifying the meaning of the term gender.”
It also uses much more precise language in defining trans people (and the scientifically-backed ability to change sex) out of legal recognition.
The bill’s definition of gender applies only to man and woman. These definitions are tied to (scientifically flawed definitions of) male and female, respectively.
The bill goes so far as to define male and female not using the flawed mechanism of “chromosomes” as the prior version did, but through gametes and ideas of what the human body “would” develop “naturally.”
The bill reads, “‘Female’ means, when used to refer to a natural person, an individual who naturally has, had, will have, or would have, but for a congenital anomaly or intentional or unintentional disruption, the reproductive system that at some point produces, transports, and utilizes the large gamete, or ova, for fertilization.” and has a similar definition for “male”.
In other words, the bill’s text appears to handle the court’s prior ruling of similar legislation as unconstitutional for ignoring intersex existence by instead trying to hammer intersex humans into Montana Republicans’ version of a sexed binary.
The bill goes on to define trans existence non-existent across the various sections of state code it touches. The Needle counted 66 sections of law that this bill would change.
The bill’s many provisions include mandating sex-segregation and anti-trans discrimination in medical facilities, including physical and mental health hospitals and rehab facilities, shelters and survivor care centers, schools, prisons, court filings, and more.
It also mandates that trans kids are discriminated against, and legally refuses the right of teachers and other kids to use pronouns that don't align with the legislature's definition of "sex based pronouns" unless parents sign a written waiver.
It also mandates discrimination in sports. Specifically, the bill prevents trans kids and trans adults from participating in sports teams, events, and related activities that match their actual sex and gender.
It further prohibits national healthcare plans that cover Montanans from covering any trans healthcare, even outside of Montana for non-Montana residents- forcing healthcare insurers to choose to cover cis Montanans or trans people nationwide.
The bill also outlaws gay marriage, a possible attempt to trigger legislatively a chain of events that could overturn SCOTUS’ prior Obergefell ruling that made such legislation nationally illegal by deeming it unconstitutional.
It's a legal move that might reflect an intention to capitalize on the fact that SCOTUS has been much more favorable to Republican lawfare in Trump's second administration.
The bill also nullifies civil partnerships or other contracts that approximate the rights and benefits of marriage or civil partnership.
![A legislative provision, or bill text, that has sections d and d4 highlighted in yellow, it reads=
Section 29. Section 40-1-401, MCA, is amended to read:
"40-1-401. Prohibited marriages -- contracts. (1) The following marriages are prohibited:
(a)
(b)
a marriage entered into prior to the dissolution of an earlier marriage of one of the parties;
a marriage between an ancestor and a descendant or between a brother and a sister, whether
the relationship is by the half or the whole blood, or between first cousins;
(c)
a marriage between an uncle and a niece or between an aunt and a nephew, whether the
relationship is by the half or the whole blood;
(d)
(2)
a marriage between persons of the same sex, as defined in 1-1-201 [section 1].
Parties to a marriage prohibited under this section who cohabit after removal of the impediment
are lawfully married as of the date of the removal of the impediment.
(3)
(4)
Children born of a prohibited marriage are legitimate.
A contractual relationship entered into for the purpose of achieving a civil relationship that is
prohibited under subsection (1) is void as against public policy."](https://lh7-rt.googleusercontent.com/docsz/AD_4nXfnd_aT7gR3rshFQm8TbnYku3oPPQoVm6idwbBXWmRpcd4NEqk3mqwWXm-AwEY9g1F_O_eOynzwkwOc8rM_3q9CXjN_Yguso_u1Gia-ufIYZ0WWbRhl4WkNj6Scqpwmin4oxr7Kqg?key=cdBJNpchjbxuBhzgXutrYA)
It also modifies standing anti-discrimination laws to ignore trans people, including in housing, employment, education, and other anti-discrimination provisions, effectively allowing anti-trans discrimination across all these aspects of life.
As written, the bill would take effect immediately once the governor signs it.
According to prior reporting by The Daily Montanan and KTVH- an NBC affiliate in Helena, MT- Montana, Republicans are deliberately holding the bill and are cynically, and strategically, holding the law until they are sure it won’t be challenged in court.
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