A recently retired law professor serving in the Wyoming House of Representatives tried and failed Monday to correct what he says is a separation of powers problem in a bill defining men and women by their biology.
The exact vote split is unclear since no one asked for a roll call, but the voice vote to defeat Laramie Democratic Rep. Ken Chestek’s amendment was resounding.
The bill also passed its third-reading vote in the House and is now headed to the state Senate.
Wyoming’s House debate echoed in federal circles Monday, when Donald Trump addressed gender policy at his inauguration.
“As of today, it will henceforth be the official policy of the United States government that there are only two genders — male and female,” Trump said about an executive order he’s expected to sign Tuesday.
Chestek has voiced frustration all along to a part of House Bill 32, the “What Is A Woman Act,” which would command courts in Wyoming to review legislation separating or defining the sexes under a more lenient constitutional standard than the one it applies to fundamental rights.
The bill calls for “intermediate scrutiny,” which would let the state distinguish between the sexes as long as it has an important governmental objective. If the courts didn’t reject the Legislature’s mandate, that lighter standard would apply to laws separating male and female sports or facilities, for example.
But the courts will reject that mandate and resent being told how to read the Constitution, Chestek said on the House floor Monday. He urged the delegates to adopt his amendment, which would delete the bill’s command toward the courts, but leave the rest of it intact — including the part defining “man” and “woman” according to biology.
“What level of constitutional scrutiny the courts should apply to challenges under this bill — that is a matter for the courts to determine,” Chestek said. “We can define terms. But whether our definition is constitutional or not is a question for the court, and we can’t tell the court how to do its job.”
Chestek had opined last week that the bill violates the separation of powers principle.
In a response questions Cowboy State Daily texted him, he said courts may just ignore that part of the bill and allow the rest to go into effect – but that may depend on the court.
Nah, Says Sheridan Rep
Rep. Ken Pendergraft, R-Sheridan, rejected Chestek’s point.
“I would contend the only thing this bill does is provide definitions so the courts can clearly understand what we mean,” said Pendergraft. “And I’d reject any circular or straw man arguments.”
Chestek stood to rebut Pendergraft. He noted that the bill does much more than define terms.
The bill is “actually defining the way the court is supposed to act, and that’s what we have no ability to do,” the professor countered.
Chestek is correct that the bill is not simply a definer. It has four basic parts:
• It would define sex-based terms like “man,” “woman,” “boy,” “girl,” “mother” and “father,” according to biological sex across all of Wyoming law.
• It would command the courts to use intermediate scrutiny on state laws distinguishing between the sexes.
• It would tell the courts that sex-based laws protecting safety and privacy are related to an important governmental objective. That language is tied to the bill’s call for intermediate scrutiny and is another call for a certain interpretation in court.
• And it would command school districts and other state agencies collecting statistics to organize the male and female-based datasets according to the biological definitions of those terms.
No, Thanks
Two Democratic representatives and one Republican also tried to amend the bill Monday, and all failed to do so.
Rep. Daniel Singh, R-Cheyenne, offered to amend it so that the biology it references are XX and XY chromosomes, rather than a person’s potential capacity to produce sperm or ova.
This amendment was important, Singh argued, because it could allay detractors’ fears that the bill will produce invasive organ checks. He said his amendment could simplify the bill’s enforcement down to a simple “spit test” instead.
One of the bill’s biggest detractors, Rep. Julie Jarvis, R-Casper, said she was in favor of Singh’s amendment.
The House majority voted it down.
Next, Rep. Mike Yin, D-Jackson, tried to narrow the bill to apply to “natural persons,” since Wyoming law can define people very broadly to include entities.
That amendment was rejected as well.
Lastly, Rep. Trey Sherwood, D-Jackson, offered an amendment that would essentially delete the bill, just as a stopgap to invite more discussion before what looked like its inevitable passage by the House.
She argued that the bill’s widespread effect on male and female terms will muddy the waters in several areas, and she said it will strip rights and opportunities from nonbinary people. For example, political parties have one man and one woman committee person in their various districts. Nonbinary people wouldn’t be able to serve in either role if this bill passes, said Sherwood.
She withdrew her deletion amendment (as she’d promised to do, since it was only a formality to incite discussion) after no one took her up on the offer to debate the bill further.
Clair McFarland can be reached at clair@cowboystatedaily.com.
