By FOCUS, A Leonine Business
Recent executive actions have emerged as a new tool for governors seeking to define “sex” in state law and reignited the discussion around how gender is legally defined at the state level. Last month two prominent executive orders were signed that define the terms “man” and “woman” based on biological distinctions in an effort to avoid complex discussions on gender identity.
On August 30, Nebraska Republican Gov. James Pillen signed Executive Order No. 23-16, the Women’s Bill of Rights, which went into effect immediately. This directive categorically defines females as those “whose biological reproductive system is designed to produce ova” and males as those “designed to fertilize the ova of a female.” Governor Pillen stated his move was rooted in a commitment to “protect our kids and women’s athletics.” However, this order comes with a caveat – it will be voided upon the enactment of any state law addressing the participation of biological males in female sports. Such a bill, LB 575, was introduced this past session but it failed to pass out of committee before the end of the legislative session.
Oklahoma Republican Gov, Kevin Stitt was the first to sign a “Women’s Bill of Rights” on August 1. The executive order pushes for an acknowledgment of inherent biological differences between the sexes and mandates that state entities adopt these definitions. The order boldly claims that while genders may be “equal,” they are not necessarily the “same” or “identical,” especially in contexts like sports or certain facilities.
While these executive actions are a new development, the issue has been prominent in state legislatures throughout the 2023 session. States like Kansas, Montana, North Dakota and Tennessee are at the forefront, having enacted legislation that narrows the definition of sex in their state laws, dubbed “LGBTQ Erasure Acts.” In Kansas, SB 180 poses stringent restrictions on trans and intersex women, barring them from certain facilities that align with their gender identity and defines “female” as an individual whose biological reproductive system is developed to produce ova, excluding women who are infertile. The bill was vetoed by Democratic Gov. Laura Kelly, but her veto was overridden by the Republican dominant legislature and took effect July 1. Montana Chapter 685, which will take effect October 1, North Dakota HB 1474, which took effect August 1, and Tennessee Chapter 486, which took effect July 1, further tether the legal understanding of sex to the biological reproductive system.
Other bills introduced this year include Alabama’s “What is a Woman Act,” which did not pass the House before the legislature adjourned June 6; Illinois HB 4122, proposed by Rep. David Friess, R-Red Bud, on August 16, which not only grounds the definition of “sex” in reproductive biology but also seeks to enhance non-discrimination protections around sexual orientation; and Michigan House Joint Resolution E, which proposes a state constitutional amendment to provide for a “Women’s Bill of Rights” and is currently pending in the House Government Operations Committee.
The redefinition of sex in both state laws and executive orders marks a crucial turning point in the ongoing conversation around gender identity and rights. As states navigate this sensitive terrain, the outcomes will undoubtedly reverberate across communities, legislative chambers, and the hearts and minds of many. FOCUS will continue to monitor how states attempt to define what constitutes a man and what constitutes a woman under state law.
