These states are narrowly defining who is 'female' and 'male' in law
SACHA PFEIFFER, HOST:
This year, lawmakers in a handful of states are narrowly defining who is female and who is male. Kansas, Montana and Tennessee have all passed bills in recent weeks defining sex in state law. Some of the bill language includes terms like gametes, ova, sex chromosomes and genitalia. Advocates for LGBTQ rights say these moves are one more step in the ratcheting up of politics against transgender, nonbinary and intersex people. Some Republican lawmakers behind the bills say their goal is to keep sex from being conflated with gender when it comes to state laws. Two reporters following these bills in their states are Blaise Gainey at WPLN in Nashville, and Shaylee Ragar of Montana Public Radio. She joins us from Helena. Thanks to both of you for coming on today.
BLAISE GAINEY, BYLINE: Yeah, thanks for having me.
SHAYLEE RAGAR, BYLINE: Glad to be here.
PFEIFFER: Each of your states has now passed one of these sex definition bills with Republican majorities. I want you to explain to us exactly what your respective bills say. And, Shaylee, let's start with you in Montana.
RAGAR: Yeah. So we're waiting to see if Governor Greg Gianforte, who is a Republican, signs the bill. And the definition is based on a person's chromosomes and whether or not a person produces eggs. A quote, "female" produces eggs, and a, quote, "male" produces sperm. The bill also includes language that there are exactly two sexes. Gianforte says he added language to make sure that intersex people aren't excluded in the bill - people whose chromosomes or anatomy don't fit into binary definitions. But the Montana chapter of the American Academy of Pediatrics says the bill language around sex is inaccurate and not inclusive of people with chromosomal variations or diverse gender identity, like transgender or nonbinary people.
PFEIFFER: And, Blaise, how about in Tennessee?
GAINEY: Tennessee's bill has passed both chambers and at some point will be sent to the governor. It's important to note that Tennessee Governor Bill Lee has never vetoed a bill, so it's likely that it will become law. The language that's used to define sex is, quote, "a person's immutable biological sex as determined by anatomy and genetics existing at the time of birth." But here's Tennessee House Rep Gino Bulso, the sponsor of the bill, explaining exactly what he believes it means.
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GINO BULSO: This body has used the term sex in the Tennessee code over the years, it has, in fact, referred to one's biological sex. It has meant male or female. It has meant men or women. It has meant boys or girls. It's only been within the last two minutes of human history that anyone has doubted, much less advocated, that there are only two sexes - male and female.
GAINEY: But research shows that sex can be more complicated than just male or female, and that's nothing new. Sex chromosomes can indicate one thing, while anatomy can indicate something else. And LGBTQ advocates say there is no need to clarify sex in state code and that this targets transgender people.
PFEIFFER: So that's the big overview of these bills. Then there's how they would apply to individual people in your states and what that would look like. Blaise, let's stay with you in Tennessee on that.
GAINEY: Yeah, well, on a practical level, if a person wants to change the gender marker on their license, they won't be able to. If they are arrested, they'd likely be housed with whatever gender they were assigned at birth. For people moving from a state that does allow people to change their gender marker, it could create a problem for them when they come here and present their documents and it doesn't align with what appears on their birth certificate. And it also gives people a firmer ground to stand on if they want to discriminate against people who have transitioned. But there's also a lot of questions about discrimination and violation of federal codes. It could create a legal risk and jeopardize federal funding for the education and health programs.
RAGAR: I would echo what Blaise said. Trans people say that having identification that's incongruent with their identity not only opens them up to discrimination, but possibly violence in unsafe situations where they're outed. The bill in Montana impacts 41 sections of code, so opponents say it's impossible to know all of the implications of it, intended or not. Democratic Representative SJ Howell identifies as transgender nonbinary, and they spoke in opposition on the House floor, saying they prefer to keep their private life private, but that this bill won't allow that.
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SJ HOWELL: This is my home. My son is growing up here. My father is growing old here. Montana is my home. And one of the things that I love about Montana is that it is big enough - and not just big enough in acreage, but big enough in character. I think that Montana is big enough to understand that we do not need to define people in this way, that this bill is not just unnecessary, but it's harmful.
RAGAR: When asked what kind of problem this bill aims to solve, lawmakers have been pretty vague. They say gender and sex shouldn't be conflated, and they want consistency in state law but haven't really identified a fallout from inconsistency. And like Blaise mentioned, there's also a financial risk to this bill.
PFEIFFER: Both of you have mentioned that financial risk. What kind of potential financial fallout are we talking about? And, Shaylee, why don't you start us off in Montana?
RAGAR: Yeah. Nonpartisan fiscal analysts here say the bill could risk up to $7 billion the state receives from the federal government because of federal anti-discrimination rules tied to that money. So the federal government uses the power of its purse to force compliance with federal rules, which protect people on the basis of sex and gender identity. But there's no exact formula for how that could happen. I talked with Eloise Pasachoff, a law professor at Georgetown University, and she says, generally, when the federal government threatens to pull funding, it goes to the courts.
ELOISE PASACHOFF: Often that would end in some sort of resolution agreement where no money is actually lost. But the threat of the money actually being lost, which is a real threat, is part of what helps the parties reach settlement.
RAGAR: Pasachoff says it is completely plausible that the federal government could pull some or all of the state's federal dollars if they can't agree to a settlement.
GAINEY: Yeah. And fiscal analysis in Tennessee show it could cost the state more than $2 billion in federal funding grants from the U.S. Department of Education and Department of Health and Human Services. But as Shaylee says, it's unclear if it'd be some of that money or all of it.
PFEIFFER: Shaylee, you mentioned that the funding issue could go to the courts. I imagine these bills overall, this proposal overall, could end up in courts. Any conversations happening about whether they're likely to hold up in court?
RAGAR: Right. And Montana's bill to define sex actually stems from a court case. In 2021, the Montana legislature passed restrictions on birth certificate amendments for transgender people specifically. That was challenged in court. And while the court is still working through the issue - we don't have a decision yet - a district court judge temporarily blocked that law, saying it's likely to violate the state constitutional rights to equal protection and privacy. And in that judge's order, Republican lawmakers argue the judge conflated sex and gender when he wrote that the law is likely to discriminate based on gender. And that's why they say they need this bill now to define sex. And I'm sure we'll see another challenge to this bill on the same grounds. It's also important to note that the U.S. Supreme Court has also ruled that discrimination based on gender identity falls under sex discrimination.
GAINEY: So here in Tennessee, it's not clear exactly which group would challenge this law, but it's likely that the ACLU would step up and do so. They've challenged the LGBTQ bills that have come out this session, including the transgender health care bill and also the drag show bill.
PFEIFFER: That's Blaise Gainey at WPLN in Tennessee, and Shaylee Ragar at Montana Public Radio. Thanks to both of you.
GAINEY: Thank you.
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