Expanded fiscal analysis finds ‘sex’ definition bill could risk up to half of state budget

A new fiscal analysis for a bill that would codify sex in Montana statute by reproductive organs found that it could risk the state’s federal funding totalling nearly $7.5 billion.

The Legislative Fiscal Division said in an expanded analysis released Friday the impact to the federal funds depends on how agencies choose to implement the bill if it were to pass. The federal totals listed included appropriations from COVID-19 stimulus funding.

Federal funds account for half of the state’s budget, which is still being negotiated and passed the House this week. The budget altogether totaled more than $14 billion for the next two years.

“The Republican majority is willing to risk half of our state budget to be punitive and isolating to a group of Montanans and some $7.5 billion,” said House Minority Leader Kim Abbott, D-Helena, in a press conference on Friday.

Democrats requested this “deeper dive” into the impacts of Senate Bill 458, sponsored by Sen. Carl Glimm, R- Kila, after questioning the fiscal note provided by the Gov. Greg Gianforte’s budget office — which found $0 fiscal impact to the state.

The minority said agencies were likely rushed to get a response back on the 61-page bill.

Glimm said in a text response to questions from the Daily Montanan the new analysis is not a fiscal note, rather a “memo to Democratic lawmakers who want to kill the bill.”

“The memo doesn’t say SB 458 will have any fiscal impact, it just lists all the federal money that comes into the state and says any fiscal impact is speculative and largely dependent on the actions of executive branch agencies,” Glimm said.

The Department of Corrections and university system previously said the bill could be expensive, citing the potential loss of federal dollars as well as the cost of potential litigation. Democrats decided to limit the scope of their request about the fiscal impact only to the potential loss of federal dollars.

Each caucus has the opportunity to request two fiscal notes per bill, and Senate Minority Leader Pat Flowers, D-Belgrade, said the original fiscal note raised more questions than answers.

Glimm said the bill is based on legislation he brought during the 2021 session, Senate Bill 280, which is temporarily enjoined in Yellowstone County District Court. SB 280 said people who are transgender can’t change the gender marker on their birth certificate.

Flowers said the court fight over SB 280 provides insight into how SB 458 would be implemented, and it would be “extreme.”

The bill would impact more than 40 sections of Montana code, and opponents say it would eliminate transgender, non-binary and Two-Spirit Montanans from state law. Sen. Mary Ann Dunwell, D-Helena, said on the Senate floor the bill was one of the most extreme anti-LGBTQ pieces of legislation in the country.

The U.S. Supreme Court amended the Civil Rights Act of 1964 in a 2020 decision to include protections for sexual orientation and gender identity. The latest fiscal analysis said the bill may be in conflict with gender identity protections as the definitions rely on reproductive organs rather than identity.

The decision in Bostock v. Clayton County prohibits discrimination in employment based on biological sex, failure to conform with sex stereotypes, sexual orientation and gender identity.

Compliance with federal discrimination laws is a typical expectation for agencies to access federal funding, the latest fiscal analysis said, and it finds the bill doesn’t require them to make changes in their hiring practices.

The bill provides no direction to state agencies on how to implement the definitions in the bill, the analysis said.

“…the supervision by the governor over the executive branch will dictate to what extent these definitions are applied and used for day-to-day operations,” the new fiscal analysis read.

Sen. Jenn Gross, D-Billings, said the ambiguity of the legislature’s ability to understand the exact legal and fiscal impacts “should tell us everything that we need to know about the bill.”

“It’s just one of the most poorly written bills I’ve seen in four sessions,” Gross said, adding that the definitions in the bill are not based on recognized science.

“Youth suicide rates are higher than almost anywhere else in the country, and among LGBTQ kids, suicide rates [are] very high,” she said. “So the fact that these types of bills are coming here are just so very concerning to me.”

The bill was introduced and heard just prior to the deadline for bills without appropriations.

“This is an incredibly important bill that has huge impacts on Montanans and it was wrong to force it through that week,” Flowers said.

The bill passed the Senate last week and will head to the House next. It was referred to the House Judiciary committee, but Abbott said she wants to see it go to House Human Services.