Constance Van Clay is an assistant professor at the Bullwett School of Law at the University of Montana. She was involved in her personal abilities early on in the Edwards vs. Montana Litigation.
Among the gusts of the executive order issued on the first day of President Donald Trump’s second term was an order defining sex as binary. “It is based on an unchanging and fundamental and uncontroversial reality. The order, which claims to protect women from men, could serve as the basis for a wide range of federal government affecting transgender people, including access to prison housing and public accommodation.
The executive order is not the only attempt to classify humanity into two different, unchanging categories based on fertility from the early stages of development. Three states, Kansas, Montana and Tennessee, passed laws similarly defining gender in 2023. The laws vary slightly, but all genders cannot change and are said to be determined at birth. Kansas law, which passed the governor’s veto, defines gender according to the ability of the person who produces eggs and sperm. Tennessee law refers only to “anatomy and genetics,” and explains that Montana law is defined both by the composition of the chromosome and the production of eggs or sperm.
Congresses in Alabama, Idaho, Iowa, Louisiana, Mississippi, North Dakota, Oklahoma, Utah and West Virginia have passed similar laws since mid-2024. And the governors of Indiana and Nebraska issued executive orders defining sex as unchanging and binary. This second wave of state laws and orders tends to focus on gametes produced by humans, as determined at birth. For example, Oklahoma law defines gender as “the biological sex of a natural person at birth” and “the woman,” and defines “the reproductive system in which at some point produces, transports and uses eggs to produce, transport, and utilize eggs to produce, transport, and utilize them naturally because of a person who has, has, has, or has, or because of a developmental or genetic abnormality or historical accident.” These laws, like recent executive orders, often and sometimes even explicitly refer to providing enhanced protection for women.
Similar to federal executive orders, state laws defining gender can potentially affect sports participation, public bathroom access, non-discrimination laws, and more. And, as is the case in general, there is no all-size approach to constitutional issues that are likely to arise in state lawsuits. However, some general principles may apply more broadly, as outlined in the first state court decision to find laws that are essentially unconstitutional and thus invalidate gender.
in Edwards vs. Montanathe state court held that Montana’s law defining gender is primary unconstitutional under the state constitution. It is not yet clear whether the state will appeal its decision to the Montana Supreme Court. As Edwards State laws defining sex can be vulnerable to challenge under the state’s constitution for three reasons – more relaxed standing doctrine, specific provisions on privacy, and more robust protection against discrimination.
Laws that define gender often take sledgehammers to state codes and incorporate binary definitions into multiple areas of law. For example, laws defining gender may be effective in approving transgender discrimination, preventing people from modifying their birth certificates, and preventing the use of bathrooms tailored to their gender identity. In federal courts, burdens are placed on plaintiffs to attack the constitutionality of every aspect of the challenged law, creating ambiguous laws with diverse intrusions into individual freedoms that are difficult to challenge.
However, state courts are more likely to accept facial challenges to laws that have a wide range of effects. State constitutions rarely include restrictions on “cases or controversies” over jurisdiction (the source of the federal government’s permanent doctrine). And while state courts tend to reflexively adopt the federal separation of the doctrine of authority, state constitutions generally allocate more power to state judicial institutions, providing a strong argument to distinguish between increasingly humiliated federal jurisdictions. Therefore, even in states that often follow the doctrine of the federal government, courts may reject strict restrictions on their power to consider the constitutionality of the law.
Along those lines Edwards The court rejected federal standards for facial assignments. Challengers included two intersex people, three trans people and two Montana psychosociety (an organization defending Native American LGBTQ+ people). The state argued that the plaintiffs could not explain how each aspect of the law would affect them, but the court rejected the state’s proposed approach.
The court found that intersex plaintiffs are effectively defined by law sufficient to indicate constitutional injury. For example, one of the plaintiffs was a woman with total androgen insensitivity syndrome. In other words, it has an XY chromosome and was born in the internal testes, but has an external genital organ. Under Montana law, she is a man. And because the law imports definitions of gender into state non-discrimination laws, she is not protected if the employer discriminates her as a woman or as an intersex person. This may be an absurd outcome, but it is a natural read of the law. The court found it sufficient to induce a constitutional review of the definition.
The state’s constitution can constrain laws that attempt to define an individual in other ways according to their biological gender. Privacy and equal protection are particularly relevant.
The modern US Supreme Court rejects the generalized idea of a “right to privacy,” but state courts do not apply their own constitution to look at privacy rights very narrowly. At least 11 states have a constitutional right to privacy. Others protect medical decision-making in at least some contexts, while others have found an unspoken right to privacy beyond the federal floor. This is important. The law defining sex prevents people from controlling deep and private choices from marking their driver’s license sex to decide which bathroom to enter. And they put the government in a position to verify or compete for a person’s gender. This is a task that may require medical and genetic testing. Therefore, Edwardsthe court concluded that Montana law “deprives plaintiffs of their ability to define or identify themselves.”
Finally, state protection against sex discrimination may be considered in future challenges to state laws defining gender. The state’s anti-discrimination and equal protection provisions could be stronger and more specific than the 14th federal amendment. Most state constitutions include some degree of protection against discrimination based on gender. Because they relied on their privacy rights, Edwards The decision did not address whether Montana law was inconsistent with the state constitution’s representational protections against discrimination based on gender. However, the current movement to define sex cannot change the meaning of existing constitutional clauses. This could prohibit people from treating them differently when gender doesn’t match gender as defined by Congress.
Interestingly, some of the state laws that define gender refer to court rulings or confusion as to what sex discrimination is truly. For example, Alabama law states that “(i) independence in court decisions and policy initiatives on gender discrimination and general gender-based language puts women’s rights and resources at risk.” Legislators are not state precedents; Bostock v. Clayton Countya US Supreme Court lawsuit finds that firing someone “just because they’re gay or transgender” is a violation of civil rights law. But clearly, state lawmakers cannot change their interpretation of federal law so that they cannot change the meaning of state constitutional clauses.
Suggested Citation: Constance Van Kley, State constitutional challenges for gender-defining lawssᴛᴀᴛᴇcᴏᴜʀᴛrᴇᴘᴏʀᴛ (May 15, 2025), https://statecourtreport.org/our-work/analysis-opinion/state-constitution-challenges-defining-defining-sex