Montana State Rep. SJ Howell speaks on the House floor during a motion to discipline Rep. Zooey Zephyr at the Montana Capitol in Helena on Wed., April 26, 2023. Howell is a Democrat who identifies as nonbinary transgender.
Tommy Martino/AP
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Tommy Martino/AP
Montana State Rep. SJ Howell speaks on the House floor during a motion to discipline Rep. Zooey Zephyr at the Montana Capitol in Helena on Wed., April 26, 2023. Howell is a Democrat who identifies as nonbinary transgender.
Tommy Martino/AP
Legislators in Montana, Tennessee and Kansas voted in recent weeks to narrowly define who is a “woman” and who is a “man” in state law using terms such as “gametes,” “eggs,” “sex chromosomes,” “genitals” and “immutable biological sex.”
The accounts in Montana and Tennessee passed the legislature and are headed to the governors’ desks. the Kansas a bill, called the “women’s bill of rights,” was vetoed by Gov. Laura Kelly, a Democrat, but the Republican legislature was able to override it.
LGBTQ rights advocates say that these bills are another step in increasing politics and policies against transgender and non-binary people.
Republicans sponsoring the bills say the definitions are important to keep gender from being confused with sex.
How bills define ‘sex’
The Montana chapter of the American Academy of Pediatrics says the bill language in that state is scientifically inaccurate and is not inclusive of people with chromosomal variations, such as intersex people, or people with different gender identities, such as transgender or non-binary people. .
the account it is based on a person’s chromosomes and whether or not they produce eggs. “Female” produces eggs and “male” produces sperm. The bill also includes language that there are exactly two genders.
But research shows that gender can be more complicated than just male or female. Sex chromosomes can indicate one thing, anatomy can indicate something else and other genetic factors can play a role.
the Kansas law legally defines a woman as someone whose reproductive system is designed to produce ova, and a man as someone whose reproductive systems are designed to fertilize ova.
In Tennesee, the language used to define sex is “the immutable biological sex of a person as determined by the anatomy and genetics existing at the time of birth.”
“When this body used the term ‘sex’ in Tennessee code over the years, it actually referred to one’s biological sex,” Republican state Rep. Gino Bulso said on the -Room Floor. “It meant male or female. It meant men or women. It meant boys or girls,” he added.
LGBTQ advocates, such as Naomi Goldberg at the Project to Advance the Movement, say there is no need to clarify gender in state code.
“Fewer people know someone who’s trans than they know someone who’s gay or lesbian, for example,” says Goldberg, “so there’s an opening there for opponents to introduce misinformation, to introduce concerns about realities that simply don’t exist.”
Effects on transgender, non-binary and intersex people
Come July 1st, the estimated 2% of Kansans who are transgender will live under the “women’s bill of rights.” The law essentially blocks legal recognition of their gender identity and forces them to use the bathrooms, locker rooms and other public facilities of the gender they were assigned at birth.
For transgender, non-binary or intersex people, having an identification that is not in line with their identity can open them up to discrimination and possibly subject them to violence in dangerous situations, if they are outside.
“This bill is not only unnecessary, it is harmful,” said Montana state Rep. SJ Howell on the House floor. Howell is a Democrat who identifies as nonbinary transgender.
“And one of the things I love about Montana is that it’s big enough. And not just big enough in size, but big enough in character. I think Montana is big enough to understand that we don’t need to define people by this way. .”
Howell said they prefer to keep their private lives private, but that this bill will not allow them to do so. The bill in Montana affects 41 sections of the code, so opponents say it’s impossible to know all its implications, intended or not. It will require state agencies across the board, such as the state health department and the department of corrections, to update their rules and how they interact with residents.
Discrimination and budgetary implications
In Montana, nonpartisan fiscal analysts say the bill could risk up to $7 billion the state receives from the federal government because of federal anti-discrimination rules attached to that money.
The federal government uses its power of the purse to force compliance with federal rules, which protect people on the basis of gender and gender identity, but there is no exact formula on how this can happen. Generally, when the federal government threatens to withdraw funds, it goes to court.
“Often this ends up in some sort of settlement agreement where no money is actually lost,” says Eloise Pasachoff, a law professor at Georgetown University. “The threat of the money actually being lost, which is a real threat, is what helps the parties reach a real solution.”
Pasachoff says it’s plausible that the federal government could pull some, or all of the state’s federal dollars if they can’t agree on a deal.
Fiscal analysts in Tennessee said it could cost the state more than $2 billion in federal funding grants from the US Department of Education and the Department of Health.
The Kansas law could result in domestic violence and rape crisis centers losing access to federal grants by forcing them not to comply with anti-discrimination rules. In a hearing, the executive director of the Kansas Coalition Against Sexual and Domestic Violence said that it could endanger up to $14 million a year.
The state’s Democratic governor, Laura Kelly, is also warning of a different kind of financial impact. She warned that the law could harm the state’s economy as it struggles to attract employers and deal with severe shortages of critical workers, particularly in health care and education.
“The companies have made it clear that they are not interested in doing business with states that discriminate against workers and their families,” she said in a statement where she explained her veto of the “women’s rights bill” and several other bills.
Can these accounts stand up to litigation?
Phil Bostock v. Clayton Countythe US Supreme Court has ruled that discrimination based on gender identity falls under sex discrimination, so some legal experts say the bills have little standing.
In both Tennessee and Kansas, the ACLU can take the legislation to court. In Kansas, the attorney general’s office said it expects the law there to be challenged.
In 2021, the Montana Legislature passed restrictions on birth certificate amendments for transgender people. It was challenged in court, and while the court is still working through the matter, a district court judge temporarily blocked that law saying it likely violates the state’s constitutional right to protection and equal privacy.
In that order, Republican lawmakers argue that the judge conflated sex and gender when the judge wrote the law likely to discriminate based on sex. Republicans now say that’s why Montana needs a gender-defining law.
Shaylee Ragar is Montana Public Radio’s bureau chief, Blaise Gainey is a political reporter with the WPLN and Rose Conlon is a health reporter with The Kansas News Service. Squires AcaciaNPR States Team editor, also contributed to and edited this story.
