Anti-Love, Anti-Science: How laws ‘Defining Marriage’ became laws ‘Defining Sex’
By Upper Seven Law
In 2023, Montana passed Senate Bill 458 (“SB 458”)—a law that unscientifically redefines sex as binary throughout the Montana Code. Bill sponsor Senator Carl Glimm advocated for SB 458, claiming that:
“Biological sex is immutable, and that means you can’t change it. And there’s only two biological sexes. You may claim to be able to change your gender and to express your gender in a different way, but you can never change your biological sex. And that’s why Senate Bill 458 is necessary.”[1]
Senator Glimm’s colleagues expressed their animosity toward sex and gender diversity even more openly. On X, formerly Twitter, Senator Jeremy Trebas wrote: “Biological realities cannot be changed. You can’t just call yourself female when you are a male.”[2] Senator Theresa Manzella struck a similar tone on Instagram: “I won’t use someone’s pronouns for the same reason I won’t talk to schizophrenics’ imaginary friends.”[3]
Montana finds itself among a growing number of states across the country that are attempting to legally redefine sex as binary. In the past three years, Montana, Florida, Tennessee, Idaho, Kansas, West Virginia, Kentucky, Indiana, and Georgia each enacted a statute that imposes a binary definition of sex either broadly or in specific code sections.[4] These “redefining sex” laws force individuals to misidentify themselves on driver’s licenses, marriage certificates, and other legal documents. Some versions—Montana’s SB 458, for example—deprive individuals of the benefits and protections of myriad state laws, including protection from sex-based discrimination in the workplace. Although courts have enjoined several of these laws, Republican majorities have continued to pursue an agenda meant to erase intersex, trans, nonbinary, and Two Spirit people.
Laws that attempt to redefine sex largely parallel a decades-long, and now failed effort, to define marriage as exclusively between a man and a woman. Both sets of laws reflect a willingness to manufacture and exploit cultural backlash for political gain, using marginalized populations to fuel culture wars. But just as laws defining marriage didn’t exist until the gay rights movement gained traction and ultimately widespread popular support, laws defining sex have come in direct response to the advent and growing success of the transgender rights movement. And while defining marriage laws played on claims of religious morality that denied the reality of non-heterosexual love, laws that redefine sex invoke social mores to deny the biological and cultural reality of transgender, nonbinary, Two Spirit, and intersex individuals.
In response to the rise of the gay rights movement in the 1970s, Maryland became the first state to define marriage as “only…between a man and a woman” in 1984.[5] Other states followed suit.[6] Eleven years later, out of concern that the Hawaii Supreme Court was about to recognize same-sex marriage, Utah passed the first Defense of Marriage Act (“DOMA”), declaring same-sex marriages recognized in other states invalid in Utah.[7] In 1996, Congress passed a federal version of DOMA, both defining marriage as heterosexual and declaring that no state was required to recognize the legitimacy of same-sex marriages in other states.[8] By 2003, when Massachusetts became the first state to legally recognize same-sex marriage, 42 states had passed laws that defined marriage as exclusively heterosexual.[9]
The language surrounding laws that now purport to define sex echoes the rhetoric of marriage-defining laws from the 1990s. Hyperbolic fear that emphasizes religious values and contrived harm to children pervade both. Congressman Bob Barr, DOMA’s author, argued that “The very foundations of our society are in danger of being burned.”[10] Florida State Senator John Grant, co-sponsor of Florida’s DOMA, declared that “God created Adam and Eve, not Adam and Steve.”[11] Another DOMA supporter, Congressman Cliff Stearns, told a gay colleague, “You threaten the future of families which have traditional marriage at their very heart…[C]hildren will suffer because family will lose its very essence.”[12]
Meanwhile, proponents of Montana’s SB 458 have made similar claims, arguing, among other things that “God created man in his own image, and in the image of God he created male and female.”[13] A lobbyist with the rightwing Heritage Foundation argued that the bill would ensure “fair athletic competition” and “protection against gender ideology in public school instruction and programming.”[14] These types of comments are commonplace among extremists nationally. After Governor Katie Hobbs vetoed Arizona’s defining sex law, Heritage Action criticized her for an “obsession with injecting radical gender ideology into classrooms, locker rooms, and doctor’s offices.”[15] Kansas Attorney General Kris Kobach has claimed his state’s defining sex law merely codified a definition that “for thousands of years…was very clear and simple and understood by all.”[16]
The 2000s and early 2010s saw increasingly effective legal and political fights against marriage statutes. Even so, when the U.S. Supreme Court invalidated the federal DOMA under the Fifth Amendment’s equal protection clause in the 2013 case United States v. Windsor, only 16 states recognized same-sex marriage. Then a sea change occurred. By 2015, when the U.S. Supreme Court struck down state laws that defined marriage as exclusively heterosexual in Obergefell v. Hodges, 37 states had already passed laws officially recognizing same-sex marriage.[17]
Members of the LGBTQ+ community and their attorneys are now working to ensure that defining sex statutes never gain the foothold that defining marriage statutes did. Two key differences favor their efforts. First, marriage is an inherently state-sanctioned act with significant legal implications. Sexual and gender identity appears on legal documents but falls even further outside of a state’s purview. Second, DOMA passed Congress with veto-proof majorities, and states across the political spectrum banned same-sex marriage in the 1990s. Today, statutes that define sex have been passed only in states with large conservative majorities and generally lack robust support in the larger population.
Upper Seven Law is currently litigating a challenge against Montana’s SB 458 in state court. Upper Seven seeks to overturn SB 458 for violating the Montana Constitution’s provisions that guarantee equal protection, privacy, individual dignity, and freedom of speech. A district court ruling is expected later this year.
[1] Mont. Leg., H. Jud. Hrg. at 8:22:10–8:22:28 (Apr. 13, 2023), available at http://sg001-harmony.sliq.net/00309/Harmony/en/PowerBrowser/PowerBrowserV2/20170221/-1/47804?agendaId=272359.
[2] Jeremy Trebas (@bluesaint24), X (Apr. 25, 2023, 10:20 PM), available at https://x. com/bluesaint24/status/1651078829824417792.
[3] Theresa Manzella (@manzellatheresa), Instagram (May 23, 2023), available at https://www. instagram. com/p/Csv95ExtjML/?igsh=djUzbXU1MmxvZmcx.
[4] H.B. 1068, 2023 Reg. Sess. (Fl. 2023); S.B. 1440, 2023 Reg. Sess. (Tenn. 2023); H.B. 421, 2024 Reg. Sess. (Id. 2024); S.B. 180, 2023 Reg. Sess. (Kan. 2023); H.B. 3293, 2021 Reg. Sess. (W. Va. 2021); S.B. 150, 2023 Reg. Sess. (Ky. 2023); S.B. 480, 2023 Reg. Sess. (Ind. 2023); S.B. 140, 2023 Reg. Sess. (Ga. 2023).
[5] CIVIL MARRIAGE PROTECTION ACT, Maryland Laws Ch. 2 (H.B. 438) (2012).
[6] Pew Research Center, Same-Sex Marriage, State by State (2015), available at https://www.pewresearch.org/religion/2015/06/26/same-sex-marriage-state-by-state-1/ (accessed Jun. 6, 2024).
[7] Id.
[8] Clinton Digital Library, 1996 Defense of Marriage Act, available at https://clinton.presidentiallibraries.us/collections/show/86#:~:text=President%20Clinton%20signed%20the%20Defense,for%20purposes%20of%20Federal%20law.
[9] Pew Research Center, Same-Sex Marriage.
[10] Nick Ramsey, How—and why—DOMA became law in 1996, NBC News (Mar. 30, 2013), available at https://www.nbcnews.com/id/wbna51379893 (accessed: Jun. 6, 2024).
[11] Michael J. Kanotz, Comment, For Better or For Worse: A Critical Analysis of Florida’s Defense of Marriage Act, 25 FLA. ST. U. L. REV. 439 (1998).
[12] Charles J. Butler, Note, The Defense Of Marriage Act: Congress’s Use Of Narrative In The Debate Over Same-Sex Marriage, 73 N.Y.U. L. REV. 841 (1998).
[13] Supra n.1, H. Jud. Hrg. at 8:31:41–8:31:47 (proponent testimony); id. at 8:35:38–8:35:41 (“Transgenderism is a wholly unscientific belief system”) (proponent testimony); id. at 8:37:47–8:38:00, 8:39:32–8:39:455.
[14] Mara Silvers, Bill creates strict definition for ‘sex,’ legally sidelining intersex and transgender people, Mont. Free Press (Feb. 28, 2023), available at https://montanafreepress.org/2023/02/28/montana-bill-creates-strict-definition-for-sex-legally-sidelining-intersex-and-transgender-people/ (accessed Jun. 10, 2024).
[15] Heritage Action Condemns Gov. Hobbs’ Veto of Fact-Based Bill to Define Sex (Apr. 17, 2024), Heritage Action for America. Available at: https://heritageaction.com/press/heritage-action-condemns-gov-hobbs-veto-of-fact-based-bill-to-define-sex (accessed Jun. 6, 2024).
[16] Rachel Mipro, ‘What is a woman?’ Here’s how a new Kansas anti-trans law skews the meaning of gender and sex (Jul. 5, 2023), Kansas Reflector. Available at: https://kansasreflector.com/2023/07/05/what-is-a-woman-heres-how-a-new-kansas-anti-trans-law-skews-the-meaning-of-gender-and-sex/ (accessed Jun. 6, 2024).
[17] Obergefell v. Hodges, 576 U.S. 644, 135 S. Ct. 2584, 192 L. Ed. 2d 609 (2015).