Missoula district court hear arguments on case defining sex

Defining “sex” makes some people think back on the President Bill Clinton and Monica Lewinsky scandal — so said lawyer Kyle Gray on Tuesday in Missoula County District Court.

In that case, the president swore he didn’t have “sexual relations” with a White House intern, but questions swirled around what exactly had been happening in the Oval Office when it came to sex.

Gray, representing plaintiffs in a lawsuit over a 2023 bill that defines “sex,” said the word can mean sexual intercourse as much as it can refer to “male” and “female.”

Senate Bill 458, the subject of litigation, aims to define sex as “male” or “female.”

The Montana Constitution, however, says the public needs to have a clear idea of the topic of a bill, and that a bill must have “only one purpose.” As such, Gray argued SB 458 missed the mark.

The bill’s title is “an act generally revising the laws to provide a common definition for the word sex when referring to a human.” It lists 41 sections of law to be revised.

“It’s the poster boy for violating the single-subject clearly expressed in the title of the bill,” said Gray, of Holland & Hart.

On behalf of the State of Montana, however, attorney Thane Johnson told Judge Shane Vannatta the point of the “single subject” rule is to prevent fraud and deception. It ensures a bill isn’t hiding things or keeping information under wraps, he said, and SB 458 spells out its plan for updates.

SB 458 defines sex as male or female, and Johnson said the title “puts the world on notice” of its intent for numerous updates. Additionally, he said, a title can’t rule out all other interpretations without going on at length.

“Plaintiffs’ argument would lead to absurd results because our title would just … fill up pages,” Johnson said.

In 2023, the Montana Legislature adopted the controversial bill that defined sex based on people’s reproductive organs and the cells they produce at the time of birth.

In response, the American Civil Liberties Union of Montana sued the state of Montana on behalf of Shawn Reagor, Dandilion Cloverdale, Jamie Doe, Linda Troyer and Jane Doe, alleging the law “is hopelessly confusing, overbroad, and … invades the province of the courts.”

The bill drew national attention from critics, who said it left no place for people who don’t fit the biologically narrow and unscientific definition. The Human Rights Campaign referred to it as the “LGBTQ+ Erasure Act.”

Tuesday, however, the parties argued only about whether the bill’s title got crosswise with the Montana Constitution’s requirement that a bill generally address only one topic, and that its title clearly expresses it.

In the argument for the state, Johnson said the title did refer to a common definition of sex, and he pointed to Webster’s Dictionary as one piece of evidence. He also explained the rationale behind the bill as addressing an idea that’s emerged in the last 10 years or so.

“The legislature just felt the need to define that term more clearly under the concept of modern times, and I don’t think there’s any question that this is the state of affairs that we are in,” Johnson said.

Although Johnson said the bill meets the single subject requirement, he said he believes it fits better as one of the exceptions to the rule. To that end, he peeled apart the requirement in Article 5 Section 11 subsection 3 of the state constitution:

“Each bill, except general appropriation bills and bills for the codification and general revision of the laws, shall contain only one subject, clearly expressed in its title. If any subject is embraced in any act and is not expressed in the title, only so much of the act not so expressed is void.”

Johnson argued the constitution allows for three exceptions — appropriation bills, codification bills, and general revision bills — and said SB 458 fit the exception given it was “generally revising” the law.

But he said the bill is constitutional either way, whether it’s an exception to the rule, as he believes, or it’s not.

Vannatta asked Johnson about “male” and “female” not being in the title, and Johnson pointed out the title refers to “humans.” Vannatta also wanted to know how the state responded to sex referring also to intercourse, but Johnson said the court is “obligated to liberally construe the definition.”

Vannatta had asked the plaintiffs whether the concepts of “male” and “female” don’t naturally flow from the term “sex,” as the defendants allege. Gray countered that defining sex led her to think of the political scandal with Clinton.

Gray also said the language about bill titles had never been interpreted the way the state was interpreting it. She said the point is to ensure the public knows what is taking place, and a reference to “generally revising” in the title doesn’t cut it.

“A bill generally revising laws about dogs wouldn’t tell you that the legislature has decided to outlaw rabies,” Gray said as an example.

In this case, Gray said the title appears to be “very deceptive,” although she said it’s possible no one thought about other definitions.

Regardless, she said, the title of the bill doesn’t give the public an idea of the way the law would change things in practice.

For example, she said, with its definition of sex as “male” or “female,” is Montana saying a hospital can discriminate against admitting a person who is transgender or intersex?

“Well, if they’re saying that, certainly the public wants to know,” Gray said.

Also, what do sex and gender have to do with interstate signage or building codes? Gray said some issues relate to gender, but some “make no sense at all,” and the public would need to dig into the subject matter to find out.

After the hearing, Vannatta said he would take the request for summary judgment under advisement and rule when possible.

If the judge finds in favor of the plaintiffs, the law will be off the books, said Alex Rate, lawyer for the ACLU of Montana.

However, if the judge finds in favor of the state, the court will consider the second claim from plaintiffs, he said; they also argue it is up to the courts, not the legislature, to determine the definition of sex because it’s part of the Equal Protection clause of the constitution.

That issue wasn’t the subject of Tuesday’s hearing.

Reagor, one of the plaintiffs, said the courtroom heard just one of the arguments the bill was unconstitutional, but it’s not the only one: “I think it’s really disappointing that so many taxpayer dollars are being wasted on defending bills that are malicious and that legislators knew were unconstitutional when they passed them.”

Keila Szpaller is deputy editor of the Daily Montanan, a nonprofit newsroom.