20-02-2025
Court strikes down Montana law narrowly defining ‘male' and ‘female'
Photo illustration by Getty Images.
Missoula County District Court Judge Leslie Halligan didn't mince words in her order striking down Senate Bill 458, passed in 2023, which reshaped Montana law to only have two sexes, male and female.
In her ruling, released Tuesday, she said that the bill literally erased some Montana residents from existence. In doing so, Halligan said that Senate Bill 458 was facially unconstitutional, and warned that similar attempts to narrowly define sexes based on political ideology, not science, was likely to meet a similar fate.
The plaintiffs in the case were a group of transgender and intersex residents, many of whom were born with genetic conditions that produced different sex traits and characteristics found in both male and female. The state had argued that even if a strict definition of male and female didn't quite encompass everyone, the changes had no tangible effects on the residents.
However, one resident who was born with an XY pattern, which would normally signify a biological male, has female genitalia and identifies as a woman. Yet on her wedding license, she'd be forced to identify as a male.
The judge said that not only does SB 458 not quite work for some residents, it completely closes them out of aspects of the state, violating the equal protections clause of the Montana Constitution, which guarantees equal treatment to people in the same circumstances.
'By declaring as a matter of law that a human being can only be 'exactly' one of two sexes, SB 458 explicitly excludes (two plaintiffs) from the definition of human beings, causing immediate harm traceable to SB458,' the court decision said. 'In addition to lacking legal recognition under law, individual plaintiffs also assert that SB458 restricts their ability to self-identify their gender.'
The State of Montana had also argued that 'the bear is dead' and that Halligan's ruling didn't matter because of an earlier constitutional court challenge that halted SB 458 because it violated a provision in the constitution that says that a bill can only address one topic.
However, Halligan rejected that argument, and warned that the issue wasn't merely unresolved, but very much present because of a bill that is moving through the Montana Legislature that 'bears remarkable similarity' to SB 458.
LC4192, requested by Glimm, a Republican from Kila, is currently in the drafting stage and legal review, according to the bill tracker website of the Legislature on Wednesday. The title of the bill is 'Revise definition of sex in Montana law.'
'The issues present before the court do not regard a generalized grievance with no threat of harm, instead it presents a justiciable controversy properly decided in the judicial form, as the threat of harm in enforcement of SB 458 or bills of similar character, remains prevalent,' the court said.
Attorneys for the state also argued that SB 458 was 'narrowly tailored' to merely address something scientific, but Halligan said the measure didn't add clarity and veered into the constitutionally protected area of privacy:
'When the Legislature 'thrusts itself into this protected zone of individual privacy under the guise of protecting patient's health, but, in reality, does so because of prevailing political ideology and the unrelenting pressure from individuals and organizations promoting their own beliefs and values,' the state is not only infringing on personal autonomy, 'it is, as well, intellectually and morally indefensible.' By restricting the definition of sex in a manner which interferes with even that of a doctor and patients' definition, SB 458 prohibits the individualized care and exercise of professional medical judgment which should be afforded to the individual, in violation of the right to privacy.'
Attorneys with the state also tried to argue, 'Plaintiffs are the rare few to whom SB 458's definitions might not squarely apply,' a legal conclusion which Halligan rejected it, saying it was trying legalize discrimination:
'The state has misrepresented the requirements of a facial challenge in the context of an equal protection claim. By nature, such a claim necessarily involves some class of people being treated better than another class of people. Taken to its logical end, the state's argument would preclude any facial equal protection claims under law, on the grounds that the challenged state action is not unconstitutional when applied to the class who is not experiencing unequal treatment. Such interpretation would eviscerate the protections built into the Montana Constitution. 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 State of Montana also argued that discrimination against a gender was still permissible, but that discrimination against sex was protected, an argument that the court criticized, pointing to federal cases that had rejected the same logic.
In a 2020 U.S. Supreme Court case, Bostock vs. Clayton County, the court held, 'discrimination on the basis of transgender status is a form of sex-based discrimination.'
Halligan said that the Legislature and SB 458 is attempting to make distinctions that don't make sense, and are contrary to the growing body of legal decisions.
'In essence, the Legislature seeks to permit discrimination against a person whose sex does not align with their gender identity, believing it to be legally distinct from discrimination directed at a person on the basis of sex,' the court said.
She called that 'a legal fiction.'
'Under SB458's definitions, 'female' and 'male' cisgender people, i.e., those whose gender identity conforms with their biological sex are still protected by Montana's antidiscrimination laws, but those who did not fit squarely into either category, i.e., transgender, intersex, and Two Spirit individuals are no longer protected,' the court said. 'Put another way, SB458 now leaves a gap in protection against sex discrimination for individuals whose gender identities do not align with their biological sex, as such interest would be permitting sex discrimination towards a minority population, in violation of the policy of the State of Montana.'
Halligan ruled SB 458 unconstitutional and ordered the state to pay the plaintiffs' reasonable attorney fees.
The Montana Attorney General's Office, which litigated the case in defense of the measure, was not immediately available for comment, and it is not known whether it will appeal Halligan's decision.
Anna Tellez, one of the plaintiffs in the case, represented by Rylee Sommers-Flanagan and Dimitrios Tsolakidis of Upper Seven Law, cheered the decision as a win for all Montanans.
'I don't only see this as a win for gender diverse or intersex Montanans, but for every person who calls Montana home. The state cannot overstep its bounds and discriminate against you for arbitrary reasons as it sees fit,' Tellez said. 'This fits the most basic philosophy of living in Montana: Mind your own business.'
