A Wyoming legislative bill called the “What Is A Woman Act” survived a rigorous debate in the House of Representatives on Thursday, which brought questions of whether it violates the separation of powers principle.
The act, House Bill 32, cleared its first vote in the Wyoming House of Representatives on Thursday with all the chamber’s Democrats and a small handful of Republicans voting against it. It has two more readings and a final vote before it can advance to the state Senate.
If it became law, the bill would define male and female according to biological sex across Wyoming’s law books. It would also defend sex-based separations of government-run facilities like prisons and bathrooms in public buildings.
And it would tell the state’s judicial branch to view state laws that separate the sexes under a lenient standard.
That last detail is problematic, says Rep. Ken Chestek, D-Laramie, who is a recently-retired University of Wyoming law professor.
“This bill attempts to do a court’s job,” Chestek told the House during Thursday’s floor argument. “They’re trying to tell the court what the Constitution requires. That’s not the job of this legislature.”
Specifically, the bill seeks to tell Wyoming courts to judge sex-distinguishing state laws under the “intermediate scrutiny” standard.
That’s a friendlier system of review than strict scrutiny, which courts apply when a state law implicates a fundamental right. But it’s a tougher system than rational basis review, which courts generally apply to laws challenged as irrational or arbitrary.
Dictating constitutional standards of review to the courts violates a principle of governmental restraint, known as the separation of powers, argued Chestek.
Second Rodeo
This isn’t the first time the Wyoming House has warred over whether its laws try to control the judicial branch.
An abortion ban passed in 2023 prompted fiery debate because it sought to tell the courts what the Wyoming Constitution says about abortion.
Detractors of the law said the judicial branch would reject the Legislature’s attempts to dictate that.
In November of 2024, the judicial branch did just that: Teton County District Court Judge Melissa Owens declared that abortion is health care. Health care autonomy is a fundamental right under the Wyoming Constitution, so the ruling made abortion access a fundamental right and struck the state’s abortion bans.
Wyoming’s governor appealed to the state’s highest court, which is expected to review the ruling.
Need A Little Help
Rep. Rodriguez-Williams, R-Cody, countered Chestek’s point by saying the courts are obviously confused and need the guidance.
“Not too long ago there was a confirmation hearing in the highest court of this land and the nominee couldn’t define what a woman is,” said Rodriguez-Williams, referring to the controversial U.S. Senate confirmation hearing of now-U.S. Supreme Court Justice Ketanji Brown Jackson.
“I’m not a biologist,” Brown Jackson said at the time, as she dodged the question.
“The courts need a little help,” Rodriguez-Williams argued Thursday. “It’s time to stand up for real women.”
Don’t Need To Walk You Through This
Rep. Karlee Provenza, D-Laramie, wasn’t the only lawmaker who called the bill invasive, but she did so in the most strident terms.
The bill says separating domestic violence centers based on people’s sex is tied to an important governmental interest.
“You’re going to force, potentially, rape victims to show their genitals to enter a domestic violence center?” asked Provenza. “I don’t think I need to walk you through why that’s problematic.”
Provenza also argued that the courts will find the bill unconstitutionally vague if it becomes law.
Rep. Julie Jarvis, R-Casper, also took issue with a part of the law defending sex-based bathroom separation in public facilities.
“Who’s going inside my body to prove (I produce eggs)?” she asked. “That is extremely invasive and very concerning.”
Communities Are Asking
Rep. Abby Angelos, R-Gillette, countered some lawmakers, who said the bill thwarts local governments’ discretion.
She referenced a controversy in Gillette in which a transgender person used a public locker room.
“Communities are asking for definition,” she said. “We need to protect women. And I’m hearing this from my (district’s) mothers – who have daughters in locker rooms.”
To Chestek’s point, Angelos said, the Legislature writes the laws and can define things better when courts have confusion.
Clair McFarland can be reached at clair@cowboystatedaily.com.
