Keila Szpaller

(Daily Montanan) A 2023 bill that defined sex as only male or female is unconstitutional because its subject wasn’t clear in its title as required by the Montana Constitution, a judge ruled Tuesday.

As such, Missoula County District Court Judge Shane Vannatta granted a motion for summary judgment requested by a group of Montana residents who sued the state.

“It is not possible for the court to uphold the constitutionality of SB 458 because plaintiffs have shown beyond a reasonable doubt that the subject of the bill is not clearly expressed in its title as is required by (the Montana Constitution),” the order said.

In 2023, the Montana Legislature passed Senate Bill 458. The controversial piece of legislation defined sex as based on people’s reproductive organs and the cells they produce at birth, and it limited sex to male or female.

A group of Montanans, Shawn Reagor, Dandilion Cloverdale, Jamie Doe, Linda Troyer and Jane Doe, sued alleging the law was “hopelessly confusing and overbroad” and invaded the province of the courts in defining sex, part of the Equal Protection clause of the state constitution.

Signed by Gov. Greg Gianforte, the bill drew national attention, and critics argued it offered an unscientific view of sex, one that was too biologically narrow.

However, the Montana residents represented by the Montana ACLU and Holland & Hart won based on another argument.

They said the actual title of the bill broke with the Montana Constitution’s requirement that a piece of legislation generally address only one topic, and that its title clearly expresses it.

The bill’s title was “an act generally revising the laws to provide a common definition for the word sex when referring to a human.” It listed sections of law to be revised based on the definitions.

But the order said the title was ambiguous, as the Montana residents had argued.

“Plaintiffs assert that ‘sex’ is a word in the English language that has multiple definitions depending on context, and that context is not clearly expressed in the title of SB 458,” the order said.

The judge agreed with the ACLU of Montana that the word “sex” in the title has more than one definition; it can relate to gender, but it can also mean “sexual intercourse.”

“The meaning for the word ‘sex’ is not clearly expressed in the title,” the order said.

The state had argued the title was clear given the title refers to “humans,” but even if the court disagreed, the state argued the bill fit under an exemption.

However, the judge disagreed with the state’s interpretation of exemptions.

The bill listed 41 sections of law it would have revised based on defining sex as male or female.

In court, a lawyer for the plaintiffs asked if, with its many revisions, Montana was saying a hospital could discriminate against admitting a person who is transgender or intersex, for example.

If that was the case, said lawyer Kyle Gray, Montanans would want to know, but they were in the dark because of the lack of clarity in the title.

In his order, the judge said he was not commenting on the quality of the title, but on the clarity of the subject.

He said people would need to read into the body of the bill to learn which meaning of “sex” is intended in the title, and “female” and “male” are more than details, they are the actual subject of the legislation.

“The court has no right to hold a title void because, in its opinion, a better one might have been used,” the order said.

“The court does not insert its opinion in this order as to what title should have been used or should be used. Rather, the court has concluded that the word ‘sex’ in the title has not been clearly distinguished (i.e.,intercourse or gender) and that the subject in the body of the Bill (providing a definition for ‘female and ‘male’) has not been identified in the title.”

The Department of Justice could not be immediately reached by email late Tuesday afternoon for comment and about whether the state intends to appeal. However, orders for summary judgment are generally difficult to overturn.

Alex Rate, legal director for the ACLU of Montana, said the order affirms the idea that bills need to be clear about their topics.

“Today’s order striking down Senate Bill 458 is a vindication of the important constitutional procedures for passing laws,” Rate said in an email. “The public has a right to know the subject of bills that are being passed by the legislature, and SB 458 clearly violated that right.”