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There appears to be no federal law establishing a definition of "biological sex", according to an earlier Law SE question: Is there a definition of "biological sex" in U.S. law?

Currently, there is a bill in the Montana legislature that seeks to create a strict definition for ‘sex'.

The law would "create a rigid definition of “sex,” boxing out legal recognition of intersex, nonbinary and transgender people in far-flung references across state law..."

Excerpt of the bill itself https://trackbill.com/bill/montana-senate-bill-458-define-sex-in-montana-law/2377583/

SB 458... would define sex as “the organization of the body and gametes for reproduction in human beings and other organisms,” specifying that humans have “exactly two sexes, male and female, with two corresponding gametes. The sexes are determined by the biological indication of male or female, including sex chromosomes, gonads, and nonambiguous internal and external genitalia present at birth, without regard to an individual’s psychological, chosen, or subjective experience of gender.”

If that bill became state law, could it be enforced - by that I mean the non-recognition of intersex, nonbinary and transgender people - by the state of Montana absent a federal law, or until a federal court struck it down?

Or would this be simply a case of the Supremacy Clause? https://en.wikipedia.org/wiki/Supremacy_Clause

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There are several dozen federal case precedents addressing the rights of transgender individuals under existing federal laws.

The cases most squarely on point and binding on the U.S. District Court for the District of Montana are Schwenk v. Hartford, 204 F.3d 1187 (9th Cir. Feb. 29, 2000) (holding that the Gender Motivated Violence Act (GMVA) applied to targeting of a transgender person) and Parents for Privacy v. Barr, No.18-35708 (9th Cir. Feb. 12, 2020) (rejecting arguments that a school policy protecting transgender students violated other students' rights).

To the extent that the Montana law was used in an attempt to do an end run around existing federal law protections of transgender individuals, it would probably be struck down as applied under the supremacy clause. Various other federal courts have found that transgender individuals are protected under:

  • The Equal Protection Clause of the 14th Amendment to the U.S. Constitution
  • Title VII of the 1964 Civil Rights Act,
  • Title IX of the Education Amendments Act of 1972,
  • The Equal Credit Opportunity Act,
  • Title VII, Section 1557 of the Affordable Care Act,
  • Title IX of the Affordable Care Act,
  • The Fair Housing Act, and
  • The Eighth Amendment to the U.S. Constitution.

The U.S. Supreme Court has repeatedly declined to grant certiorari to review or overturn these decisions protecting transgender rights (which isn't to say that it couldn't adopt new precedents overruling these decisions in the future).

So, in almost all areas where sex discrimination is prohibited under federal law, the Montana statute would have to yield to federal law. Federal law protections against sex discrimination aren't all encompassing, but the federal courts have not hesitated to invoke the Equal Protection Clause of the 14th Amendment when no statutory protections apply. So, there probably aren't many circumstances in which this law could have a meaningful effect.

The fact that a Montana state law might say otherwise is irrelevant.

The U.S. Supreme Court has recently specifically made clear to the Montana Supreme Court that it may not enforce state laws that violate federal law stating:

The Supremacy Clause provides that “the Judges in every State shall be bound” by the Federal Constitution, “any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” Art. VI, cl. 2. “[T]his Clause creates a rule of decision” directing state courts that they “must not give effect to state laws that conflict with federal law[ ].” Armstrong v. Exceptional Child Center, Inc., 575 U.S. 320, 324, 135 S.Ct. 1378, 191 L.Ed.2d 471 (2015).

Espinoza v. Montana Dept. of Revenue, 207 L. Ed. 2d 679 (June 30, 2020).

Similarly, in another not too ancient case, the U.S. Supreme Court held that:

The question presented in this case is whether the holding of Citizens United applies to the Montana state law. There can be no serious doubt that it does. See U.S. Const., Art. VI, cl. 2.

Am. Tradition Partn., Inc. v. Bullock, 567 U.S. 516, 516 (2012).

Another older and emphatic provision making clear that state officials must follow federal law from the U.S. Supreme Court is as follows:

Article VI of the Constitution makes the Constitution the ‘supreme Law of the Land.’ In 1803, Chief Justice Marshall, speaking for a unanimous Court, referring to the Constitution as ‘the fundamental and paramount law of the nation,’ declared in the notable case of Marbury v. Madison, 1 Cranch 137, 177, 2 L.Ed. 60, that ‘It is emphatically the province and duty of the judicial department to say what the law is.’ This decision declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system. It follows that the interpretation of the Fourteenth Amendment enunciated by this Court in the Brown case is the supreme law of the land, and Art. VI of the Constitution makes it of binding effect on the States ‘any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.’ Every state legislator and executive and judicial officer is solemnly committed by oath taken pursuant to Art. VI, ¶3 ‘to support this Constitution.’ Chief Justice Taney, speaking for a unanimous Court in 1859, said that this requirement reflected the framers' ‘anxiety to preserve it [the Constitution] in full force, in all its powers, and to guard against resistance to or evasion of its authority, on the part of a State. * * *’ Ableman v. Booth, 21 How. 506, 524, 16 L.Ed. 169.1112

No state legislator or executive or judicial officer can war against the Constitution without violating his undertaking to support it. Chief Justice Marshall spoke for a unanimous Court in saying that: ‘If the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery * * *.’ United States v. Peters, 5 Cranch 115, 136, 3 L.Ed. 53. A Governor who asserts a power to nullify a federal court order is similarly restrained. If he had such power, said Chief Justice Hughes, in 1932, also for a unanimous Court, ‘it is manifest that the fiat of a state Governor, and not the Constitution of the United States, would be the supreme law of the land; that the restrictions of the Federal Constitution upon the exercise of state power would be but impotent phrases * * *.’ Sterling v. Constantin, 287 U.S. 378, 397–398, 53 S.Ct. 190, 195, 77 L.Ed. 375.

Cooper v. Aaron, 358 U.S. 1, 18–19 (1958)

Any Montana government official who tried to enforce that law that has been held to be overridden by federal law in sheer defiance of federal law would end up like Rowan County, Kentucky Clerk Kim Davis: in jail for being in contempt of court in short order.

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  • Thanks for the comprehensive answer; the bill and any subsequent law would be nonsensical and unenforceable, so I think the politicians behind the bill are simply posturing. Mar 16, 2023 at 3:16
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    @BlueDogRanch It is a little more than that. Dobbs illustrated how just a single decision from a very conservative SCOTUS can sweep away a huge swath of lower court case law, which could bring previously unconstitutional state laws back to life. State laws like this one could provide a vehicle for future SCOTUS challenges to the status quo and forums to decide cases that overturn existing precedents. And, there is lots of time, effort and money that goes into turning laws that should be considered unconstitutional into court rulings to that effect even when you win for a tiny affected group.
    – ohwilleke
    Mar 16, 2023 at 4:16
  • A very good and thorough answer, but any discussion around a state's legal definition of a term as it applies to federal law ought to include the federal legal definition of the term for comparison. Mar 16, 2023 at 16:04
  • @MichaelHall "the federal legal definition" There isn't such a thing, at least in the sense of some statute out there that applies for all purposes in federal law. Legal definitions are context specific. The federal courts have largely come around to the conclusion that discrimination against someone who is transgender is one form of "discrimination on account of sex", which is not the same as defining "sex" or "gender" itself. The law in common law countries generally has judges use context sensitive common sense rather than being structured like a math or logic proof or a civil code.
    – ohwilleke
    Mar 16, 2023 at 16:30
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    @MichaelHall I reviewed the non-legal psychological and biological aspects of this in a blog posts in March of 2008 if you'd like background: washparkprophet.blogspot.com/2008/03/rare-and-different.html and I can vouch for that from the personal context of having several transgender clients as well. Sexual orientation and transgender identity are both more biology than choice (which isn't to say that there isn't some muddiness in the matter). No more than 1 in 500 people are transgender by a reasonable estimate and they don't deserve the persecution they get.
    – ohwilleke
    Mar 16, 2023 at 17:16
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This bill doesn't create any new laws. It just clarifies the meaning of the word "sex" in all the existing laws (or at least, many of them). This is plainly obvious by reading the bill.

Therefore, there is nothing to enforce, except the existing laws. For example (on page 12) a marriage between a cisgender man and a transgender woman is now considered a gay marriage, which is illegal in Montana. The existing penalty for gay marriage would apply. On page 4, political party precinct committee memberships (whatever those are) must consist of one man and one woman; a party may, for example, submit one transgender woman and one cisgender woman. If a party submits one transgender woman and one cisgender man, the penalty for improper committee memberships would apply. And so on.


The following language is also present in the bill:

"Sex" means the organization of the body and gametes for reproduction in human beings and other organisms. In human beings, there are exactly two sexes, male and female, with two corresponding gametes. The sexes are determined by the biological indication of male or female, including sex chromosomes, gonads, and nonambiguous internal and external genitalia present at birth, without regard to an individual's psychological, chosen, or subjective experience of gender.

The part that I have italicized section is simply clarifying the first sentence and is not a law to enforce.

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    What are you talking about? "a gay marriage, which is illegal in Montana. The existing penalty for gay marriage would apply." Gay marriage is legal in all U.S. states by dictate of the U.S. Supreme Court. There is no penalty for gay marriage.
    – ohwilleke
    Mar 15, 2023 at 23:26
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    The Montana law has been unconstitutional since the U.S. Supreme Court made its ruling in Obergefell v. Hodges, 576 U.S. 644 (June 26, 2015), if not sooner under lower court rulings. Modifying its already unconstitutional law in this fashion doesn't change that.
    – ohwilleke
    Mar 15, 2023 at 23:49
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    Any Montana government official who tried to enforce that law would end up like Rowan County, Kentucky Clerk Kim Davis - in jail for being in contempt of court in short order. nytimes.com/2015/09/04/us/kim-davis-same-sex-marriage.html Montana law does not override federal law. See Article VI, Paragraph 2 of the U.S. Constitution.
    – ohwilleke
    Mar 15, 2023 at 23:52
  • The committee memberships seems like a good example of how this could lead to legal but possibly undesirable outcomes. If every person is defined as a man or woman, and the law otherwise legally differentiates between the two, it may not be a violation of equal protection despite treating a person as a sex they do not want to be treated as. Mar 16, 2023 at 5:05
  • @IllusiveBrian What "possibly undesirable outcomes" are you referring to? Allowing left-wing committees to shut cisgender men out entirely?
    – nick012000
    Mar 16, 2023 at 8:06

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