Senate Finance sends ‘sex’ definition to floor, Dems requesting ‘deep dive’ into fiscal impact

A bill to define sex could be costly for the state, the Montana University System, Commissioner of Higher Education and Department of Corrections have assessed.

“We’ve also got technical notes that made it clear that there are some credible threats to federal funding statewide, and obviously, that is a huge price tag,” said Minority Leader Pat Flowers, D-Belgrade, on Monday. “To allow this to get out of this committee without taking the time to fully understand those implications, I think is irresponsible.”

Last week, some committee members expressed skepticism over a fiscal note that said the bill would cost $0. More than 20 agencies responded to an initial request from the Governor’s Budget Office about financial implications, saying there would be no fiscal impact.

However, the DOC and university system said the bill could be expensive. And in an email Monday, Sen. Ellie Boldman, D-Missoula, said she has talked to groups since Friday, like the Montana Association of Counties, who have expressed concern.

“So we can vote how we want today, but I’m telling you, this will affect every agency,” Boldman said in a committee hearing Monday.

Boldman and Flowers were two of eight lawmakers on the Senate Finance and Claims Committee, including two Republicans, to vote against Senate Bill 458, sponsored by Sen. Carl Glimm, R-Kila. The bill passed with 11 lawmakers in favor. Sens. Daniel Salomon, R-Ronan, and Jeff Welborn, R-Dillon, joined Democrats in opposition.

Senate Democrats requested Monday a more thorough fiscal analysis from the Legislative Fiscal Division, they said in a release.

Glimm said the bill is just clarifying the definition of sex in law, as he said it’s been construed with gender in code.

“To say that all of this is going to cause all kinds of legal costs is purely speculation, in my opinion,” he said.

A technical note prepared by the Office of Commissioner of Higher Education and the Montana University System said that because this bill creates conflict with federal law, it may jeopardize federal funding the school system receives.

“For example, Title XI prohibits educational institutions that receive ‘federal financial assistance’ from discriminating against individuals on the basis of sex in education programs or activities. Federal funds may be terminated for noncompliance,” the note read.

Montana Department of Corrections said in a technical note made similar concerns due to conflicts that could occur between state and federal law under the Prison Rape Elimination Act (PREA).

“Financial penalties exist for the state should Montana become non-compliant with PREA,” Montana’s Department of Corrections’ technical note read.

Both fiscal notes mentioned that the potential cost of litigation would be impossible to quantify but “quite significant.” The origin of this bill comes from a bill passed last session and is tied up in court that would have banned transgender women from competing in sports.

In an email to the Daily Montanan, Boldman said the bill is in violation of the U.S. Supreme Court decision Bostock vs. Clayton County which found the protections under the 1964 Civil Rights Act extended to gay and transgender Americans.

Boldman said other state and local agencies would likely be impacted, like cities and counties that rely on Community Development Block Grant funds and Housing and Urban Development grants, the Department of Public Health and Human Services for admissions to the state hospital at Warm Springs and more.

“The reason (the bill is) 61 pages long is because all of these agencies will be affected, and whether or not they fully understood when they responded to the Office of Budgets’ requests for response, you better believe OCHE and DOC got it right away,” Boldman said.

Chairman Sen. John Esp, R- Big Timber, said the bill would get a full hearing when it gets to the House and recommended the people who reached out since the hearing Friday attend the hearing in the other chamber.

“We’re going on what we heard,” Esp said. “It was zero fiscal impact and that’s what we’re looking at today.”

Montana Human Rights Network said in a statement Monday that the definitions set forth in SB 458 are based on an “unscientific and archaic understanding of basic biology.”

“In a year where anti-LGBTQ bills are sweeping the country at unprecedented rates, SB 458 stands out as the most egregious of all of them,” said MHRN Director of Equality, Shawn Reagor. “SB 458 is the only bill of this magnitude to receive traction in any state. We are committed to fighting this bill to its necessary and inevitable demise, whether it be in the legislature or the courts, and we call on all Montanans to join us in our opposition.”

The bill will next be heard on the Senate floor.

Editor’s Note: This story has been corrected to reflect the Republican Senators who voted against SB 458. Sen. Tom McGillvray voted yes.  Sen Jeff Welborn voted no.