The Daily Beast is up in arms over the latest legislation making its way through the Montana legislature dealing with transgender issues. The bill in question, SB 458, would provide a legal definition for the word “sex” based on long-established medical principles. But the Beast describes it in dramatic terms, saying it would “define trans people out of existence.” What the bill actually does is define “sex” as being established by “the organization of the body and gametes for reproduction in human beings and other organisms.” (Because apparently in 2023 we need someone to tell us about the birds and the bees in legislative terms.) But while most of what’s in the bill should be seen as common sense – assuming that still exists – the bill does appear to have a couple of potential problems that should be addressed before it’s signed into law, which we’ll get to in a moment.

In this legislative session, a bill prohibiting gender-affirming health care has passed both Montana’s Senate and House of Representatives, and currently awaits the signature of Governor Greg Gianforte. Another bill would ban drag shows (it has passed the House; next stop the Senate); another would allow people to misgender and deadname trans pupils at schools; another would allow medical professionals to withhold care according to their moral and religious beliefs; another would ban “obscene” books from public and school libraries.

The latest, and most extreme piece of anti-trans legislation, SB 458—which will soon head to the House for consideration—seeks to define sex according to reproductive capacity, stripping legal recognition from trans, non-binary, and those with intersex conditions. Should it pass in Montana, campaigners are concerned about the likelihood of similar bills being introduced and passed in other Republican-led legislatures.

This is just the latest in a series of bills that Montana’s legislature has advanced in response to the national transgender craze. Previous legislation cut off contracts with health insurance companies that pay for transgender procedures performed on children. They also stopped schools from forcing the use of incorrect pronouns and banned the presence of pornographic material in school libraries. (Because we also apparently needed to tell people that.)

While this latest bill appears to be little more than common sense at first glance, I will agree that it may be overly broad and bring about some unintended consequences. It focuses almost exclusively on reproductive functions, saying that humanity is composed of “exactly two sexes, male and female, with two corresponding gametes.” It defines women as people capable of producing eggs and men as people capable of producing sperm.

That’s all true for the most part, but there are exceptions to those rules. A thankfully small number of boys are born infertile at birth, without the ability to produce sperm. A similarly rare condition in girls (androgen insensitivity syndrome) causes some to be born without the ability to produce eggs.

Complicating matters further, there are people who are born “intersex,” (hermaphroditism) having reproductive organs and other characteristics common to both genders. Even though small in number, such people could be inadvertently impacted by this law through no fault of their own.

It might have been easier to simply construct the law based on DNA and the presence or absence of a Y chromosome in the 23rd pair. But even that approach would run into issues. There are people who are born with missing or even extra sex chromosomes, resulting in a condition known as ambiguous genitalia. While also exceedingly rare, these are the people who could most honestly be described as being legitimately “transgender.” Because of that, this law should provide accommodations for such people to avoid eventual lawsuits against the state and the punishment of people with irregular reproductive systems through no fault of their own.