Senate Bill 458, passed by the Legislature in 2023 and signed by the governor, was a 64-page bill that attempted to define gender and sexuality as either and exclusively male or female. In a relevant portion, the bill defined “gender” as follows: “In humans, there are exactly two sexes, male and female, with two corresponding gametes.” The bill listed about 41 sections of Montana Code that would need to be revised based on this definition.

The constitutionality of SB 458 was challenged, not surprisingly. Missoula District Court Judge Shane Vannatta ruled that the law was unconstitutional because its subject matter was not sufficiently clear in the title, as required by the Montana Constitution, Article V, Section 11(3).

I have nothing against the Court's decision. It was narrowly drawn and considered, and consistent with the kind of decision that “non-activist” courts must and do make based on the relevant facts and law.

Unfortunately, however, I doubt this will be the last we hear of this issue. A similar bill will likely resurface in a new legislative session, albeit under a different title.

Regardless of what they call it, the underlying problem is that lawmakers are consciously choosing to ignore science and instead intentionally enacting laws based on what they perceive as biblical doctrine and white Christian nationalism – as promoted by the Trump cult and the various national organizations (e.g., the American Legislative Exchange Council (ALEC)). the Heritage Foundation, the Federalist Society, and Alliance Defending Freedom, to name just a few) that shape the former president's disturbed and perverse value system.

In truth, SB 458, in its attempt to define gender and sexuality to include only producers of sperm and eggs, was nothing more than a dishonest attempt to give legal sanction to the very kind of discrimination that Article II, Section 4 of the Montana Constitution expressly prohibits.

Article II, Section 4 essentially states:

“Human dignity is inviolable. … Neither the State nor any person, firm, society or institution may discriminate against a person in the exercise of his or her civil or political rights on the basis of his or her … sex.”

Conclusion: Discrimination on the basis of sex is absolutely prohibited under the Constitution and cannot be legalized by passing a scientifically flawed, religiously based law, no matter how much the title says it all.

As mentioned above, SB 458 attempted to define gender and sexuality as follows: “In humans there are exactly two sexes, male and female, with two corresponding gametes.” Regardless genesis 1:27, upon which the preceding formulation is based, this definition is scientifically inaccurate. And passing a law that says otherwise doesn't make it any less wrong – it's like passing a law that says the sun rises in the west and sets in the east. That's simply not the case.

The bill defined “female” on the basis that that sex produces large, immobile eggs, and “male” on the basis that that sex produces small, motile sperm. Both definitions use the qualification “under normal development” – which apparently excludes a person from being classified as female or male if their development is not normal, or if they do not produce eggs or sperm for any reason. In other words, a significant number of members of the human race.

Despite the Bible and the legislature’s denial of science, humans cannot be divided into “exactly two genders,” male or female, as proposed in SB 458.

Medicine and science recognize a third category of people under the general classification of “intersex.” An intersex person is a person born with a combination of male and female biological characteristics. These individuals are born with various sex characteristics, including chromosomal patterns, gonads, reproductive or sexual anatomy, or genitalia that do not fit the typical definitions of male and female—let alone those in SB 458. There may be a discrepancy between internal and external genitalia. There are at least 30 different intersex variants, each with its own name and description. Due to word limits, we cannot go into detail, but an internet search is easy.

The causes of intersexuality can be hormonal or chromosomal, but the important thing is that intersex people are naturally predisposed; they were simply born that way, regardless of what the Bible says to the contrary and conscious ignorance of the law.

Intersex people simply do not fit the clear biblical definitions adopted in SB 458. And the same is true for those people who suffer from a condition recognized by medicine and science as gender identity disorder—in other words, the transgender people that lawmakers demonize and love to hate.

According to SB 458, if someone is neither male nor female, that person does not fall under the definition of gender. That person is an outsider, a social misfit who apparently isn't even considered human. And therefore, that person is a legitimate target for legalized discrimination, demonization, and hate; the kind of scapegoating that is a hallmark of fascism.

SB 458 failed constitutionality this time. And it won't pass the constitutional test the second time around, no matter what the legislature calls it.

You can put lipstick on a pig, but it will still walk like a pig, look like a pig, and stink.