Montana judge strikes down law defining ‘sex’ as ‘male and female’ 

“Public policies and laws should never be ambiguous,” Glimm said. “To the extent possible, we should draw bright, clear lines. And in this case, we need to draw a clear distinction between sex and gender, and that’s what this bill does.”

Jeff Laszloffy, president of the Montana Family Foundation, noted that a U.S. Supreme Court justice, Ketanji Brown Jackson, drew widespread criticism during her confirmation hearing in October 2022 when she refused to define what a woman is, but he said that defining terms is a job for legislators, not judges. 

“As policymakers, you know that definitions are important if we’re going to have rational, intelligent debates and clear laws,” Laszloffy said. 

He said a Montana state judge in April 2022 conflated the terms “sex” and “gender” while striking down a state law that required birth certificates to state the sex of a person, as opposed to the gender with which the person identifies, unless the person undergoes a surgical procedure. 

An opponent of the bill, S.K. Rossi of the Human Rights Campaign, described it during the legislative committee hearing as “an attempt to erase trans, nonbinary, and two-spirit people from the code, thereby removing the rights, privileges, and considerations that trans, nonbinary, and two-spirit people would have under the law.” 

The term “two-spirit” refers to an alternative gender status. 

Plaintiffs who sued to try to overturn the law include Montana residents who identify as transgender, nonbinary, and intersex, according to the Associated Press. The judge did not address the plaintiffs’ substantive claims that the law would deny them the legal protections they are entitled to, according to the Associated Press. 

The judge issued the decision in the state’s Fourth Judicial District, which covers Missoula County, on Tuesday, June 25, according to the Associated Press, which also reported that the state attorney general’s office plans to continue to defend the law. 

A spokesman for the state attorney general’s office could not be reached by deadline on Thursday.