On June 25, a Montana state district court declared Senate Bill 458 unconstitutional because the title violates the “clearly expressed” requirements of Article V of the 1972 Montana Constitution. The decision affirms the state’s constitutional commitment to a transparent legislative process for its citizens and legislators and provides immediate relief to Montana citizens who would be significantly impacted by new definitions in the Bill.
A team of Holland & Hart Billings attorneys led the challenge in collaboration with attorneys from the ACLU of Montana (MT ACLU). Providing pro bono legal services on this significant case reinforces the firm’s commitment to undertake opportunities for giving our skills, time, and talents to benefit our communities.
Background
On May 19, 2023, Montana Governor Gianforte signed Senate Bill 458 (the Bill) adopted by the 2023 Montana Legislature, with an effective date of October 1, 2023. Titled, “An Act Generally Revising the Laws to Provide a Common Definition for the Word Sex When Referring to a Human; and Amending Sections 1-1-201, 2-18-208, 7-15-4207, 7-34-2123, 13-27-408, 13-35-301, 13-38-201, 20-7-1306, 20-9-327, 20-25-501, 20-25-707, 22-2-306, 33-1-201, 35-20-209,39-2-912, 40-1-107, 40-1-401, 40-5-907, 40-5-1031, 41-5-103, 42-2-204, 45-5-625, 46-19-301, 46-19-401, 46-32-105, 49-1-102, 49-2-101, 49-3-101, 50-5-105, 50-5-602, 50-11-101, 50-15-101, 50-19-103, 50-60-214, 53-20-142, 53-21-121, 53-21-142, 60-5-514, 60-5-522, 61-5-107, and 72-1-103, MCA.” The Bill attempted to amend 41 sections in 20 different titles of the Montana Code Annotated covering a wide and diverse range of subjects from housing, health care, and insurance, to education, business signage, voter registration, and elections. By purporting to redefine “sex” based exclusively on an individual's reproductive capacity and sex assigned at birth, the Bill would discriminate against transgender and non-binary people, gender non-conforming and intersex individuals.
A group of transgender, intersex, and post-menopausal women whose rights and lives would be deleteriously affected by the Bill reached out to the ACLU of Montana (MT ACLU) for help. MT ACLU turned to Kyle Gray at Holland & Hart, who has provided pro bono legal services on several complex, high-stakes constitutional challenges in collaboration with MT ACLU.
The legal teams developed a strategy that challenged the process by which the Bill was enacted with an early dispositive motion on a purely legal issue to provide the most expeditious relief for the Plaintiffs and other adversely-affected Montanans. On December 18, 2023, a Complaint was filed in Missoula County District Court seeking a declaration that the Bill is unconstitutional and its enforcement should be permanently enjoined. The following day, the Plaintiffs filed a Motion for Summary Judgment and following briefing, oral arguments were heard on June 18, 2024.
The Constitutional Challenge
Montana’s Constitution provides a rulebook for how enforceable laws can lawfully be made through bills enacted by the legislature. One of the bedrock requirements for a bill to be lawful is Article V’s requirement that a bill “shall contain only one subject, clearly expressed in its title.” The purpose of this “procedural rulebook” is to give people general notice of the character of the proposed legislation, so they may not be misled; to advise members of the legislature of the character of the proposed legislation; and to guard against false and deceptive titles. By providing transparent information about a proposed bill, Montanans and members of the legislature can understand how it will affect citizens bound by the new law.
Kyle Gray led a deep dive into the history of Montana’s 1889 and 1972 Constitutions and almost 100 years of caselaw interpreting the “clearly expressed” requirement. On behalf of the Plaintiffs, the legal team asserted that Bill is facially unconstitutional and void on two bases:
- The Bill’s title “An Act Generally Revising the Laws to Provide a Common Definition for the Word Sex When Referring to a Human” purports to provide a “common definition” for the word “sex.” The word “sex” has multiple definitions and meanings, namely gender or sexual intercourse. It is impossible for a Montana citizen or legislator to know, without delving into the body of the Bill, which definition is intended. The title is deceptive and defective because it violates Article V’s “clearly expressed in the title” requirement.
- The Bill deals with a wide variety of issues that are “distinct and different” violating Article V’s requirement that the body of the bill contain only one subject.
The Court’s Order
Article V, § 11(3) provides that “Each bill, except general appropriation bills and bills for the codification and general revision of the laws, shall contain only one subject, clearly expressed in its title.” The State of Montana argued the Bill was exempt from Article V because it is entitled a bill “generally revising” the laws. The Court accepted Plaintiffs’ argument that the language of Article V is conjunctive: to be exempt, a title must state the bill is intended to both revise and codify Montana law. The Court agreed that because the Bill does not state it is “for the codification” of the law, Article V’s “single subject clearly expressed” requirement applies. The Court also accepted Plaintiffs’ contention that the Bill does not clarify what meaning of “sex” is intended and a person must read the text of the body of the Bill for context. The Court also ruled that the body of the Bill goes beyond the subject of the title (common definition of sex) and also addresses new definitions for the words “female” and “male.” The Court found, “The definitions of the words “female” and “male” are more than details of the Bill, they are (as acknowledged by the State) the subject of the Bill. The Court found the Bill unconstitutional because the subject of the Bill is not “clearly expressed” in its title and did not address the Plaintiffs’ “one subject” argument.
The Team
The Plaintiffs’ legal team included Holland & Hart Billings attorneys Kyle Gray, Brianne McClafferty, Katy Brautigam, and Bailey Nickoloff, serving as co-counsel with MT ACLU attorneys Alex Rate and Marthe VanSickle.