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James Nelson -- SB 458: An attempt to Legalize Discrimination

All the hullabaloo about how much or little SB458 will cost the State, if the
bill is enacted, completely misses the most important flaw in this proposed piece of
legislation. In attempting to define sex and sexuality to include only sperm and egg
producers, SB 458 is nothing other than a disingenuous attempt to put a legal gloss
on the exact sort of discrimination that Article II, section 4 of Montana’s Constitution

specifically prohibits.

Article II, section 4 states, in pertinent part:

The dignity of the human being is inviolable. . . . Neither the state nor
any person, firm, corporation or institution shall discriminate against
any person in the exercise of his civil or political rights on account of .
. .sex. . ..


Bottom line: discrimination based on sex is absolutely prohibited as a matter
of Constitutional law, and it cannot be legalized by adopting a scientifically flawed,
religiously grounded statute.

SB 458, 64-page bill, attempts to define sex and sexuality. In pertinent part,
the bill defines “sex” in the following manner: “In human beings, there are exactly
two sexes, male and female with two corresponding gametes.” Notwithstanding
Genesis, 1:27, which the foregoing language follows, this definition is scientifically
inaccurate--and passing a statute saying otherwise doesn’t make it any less false.
Any more than does passing a law that says the sun rises in the west and sets in the
east. It just doesn’t.

SB 458 defines “females” on the basis that that sex produces large immobile
eggs and “males” on the basis that that sex produces small mobile sperm. Both
definitions use the qualifier “under normal development,” which apparently
disqualifies a person from being either female or male if their development is not
normal or, otherwise, for whatever reason, do not produce eggs or sperm.

And that brings me to why this legislation is scientifically inaccurate and
flagrantly unconstitutional. The Bible, notwithstanding, human beings cannot
categorized into “exactly two sexes”, male or female, as the bill states.

Medicine and science recognize a third category of human beings under the
general classification of “intersex.” An intersex human being is a person born with
a combination of male and female biological traits. These individuals are born with
any of several sex characteristics including chromosome patterns, gonads,
reproductive or sexual anatomy or genitals that do not fit typical definitions of male
and female—and not the ones in SB 458. There may be a discrepancy between
internal genitals and external genitals. There exist at least 30 different intersex
variations, each with its own name and description. Word limitations prevent going
into these in any detail, but internet research is easy.

The causes of intersex conditions may be hormonal or chromosomal, but the
important point to be noted is that intersex individuals are hardwired to be that way;
that’s just the way they were born.

To name it for what it is, SB 458 is an attempt to legalize what is
unconstitutional discrimination. Intersex individuals do not fit within the black and
white Biblical definitions adopted by the bill. And the same can be said for those
individuals who suffer from a condition recognized in medicine and science as
gender dysphoria—the transgender folks the supermajority/Freedom Caucus
demonizes and loves to hate.

If one is neither male nor female according to SB 458, then that person is not
included in the definition of sex. That person is an outlier, a social outcast, not even,
apparently considered a human being--and, therefore, it follows, a legitimate target
for legalized discrimination.

Legalized discrimination? It won’t pass Constitutional muster.

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