Alabama House committee passes bill putting definitions of sex into law

Rep. Susan DuBose, R-Hoover, presents HB 405, which would define "sex-based terms" into state law, to the House Health committee on May 17, 2023. (Alander Rocha/Alabama Reflector)

The Alabama House Judiciary Committee Wednesday approved a bill creating legal definitions of men and women based on the presence or potential for the person to possess certain reproductive cells.

HB 111, sponsored by Rep. Susan DuBose, R-Hoover, says that a man is a person with “a reproductive system that at some point produces sperm” while a woman is a person with “a reproductive system that at some point produces ova.”

The proposal also allows state and local agencies to create separate spaces assigned to each gender and mandates them to collect information that identifies people based on their gender at birth.

“It is a definition bill for our courts to have guidance when interpreting laws that already exist in Alabama,” DuBose said. “Words have meaning, and my intent is to make sure we have uniform definitions, and our courts have clarity.”

SB 92, a similar bill sponsored by Sen. April Weaver, R-Brierfield, was approved in a Senate committee earlier this month.

More than 100 people showed up to a public hearing on the legislation last week. The bill, coming after years of legislative attacks on transgender youth by the Alabama Legislature, has troubled groups who advocate for people in the LGBTQ+ community. DuBose sponsored a law last year banning transgender youth from playing college sports.

“For a number of reasons, HB 111 and SB 92, the ‘What is a Woman Act’ does not make sense to implement because it defines the social categories of gender as reproductive systems,” said Allison Montgomery, a member of the Alabama Transgender Rights Action Coalition, in an interview Tuesday. “Even if people transition, they are forever legally classified as whatever they were assigned at birth.”

The implications could be profound for people who are incarcerated, allowing transgender people to be placed into facilities with those who are the opposite gender.

“We are seeing calls to law enforcement because someone suspects someone else in the bathroom of being transgendered,” Montgomery said. “Bills like this are dangerous for everybody because they create a culture of fear.”

Rep. Chris England, D-Tuscaloosa, expressed reservations about the bill.

“Oftentimes, we create definitions, and we create laws that then create perceptions, and there are people who pursue those perceptions,” he said.

DuBose said the only impact of her bill would be a law that was already passed in education that required K-12 students use the bathrooms according to their sex, “and this would define sex for those purposes,” she said.

England also referred to a 2020 U.S. Supreme Court case called Bostock v. Clayton County, in which the justices ruled 6-3 vote that Title VII of the Civil Rights Act of 1964 protects employees against discrimination because of sexuality or gender identity.

“If you create a definition that people have to fit into in state law that doesn’t require certain accommodations to be made based on those definitions, but then you have a Supreme Court case that does require certain accommodations to be made, there may be some conflict there,” England said.

DuBose said she is not aware of the case but does not have an issue with the decision made by the justices of the U.S. Supreme Court.

“We are at the beginning stages of this legislation,” England said. “I am certainly willing to come and talk to you further about those because there may be a way that we can draw up legislation and take some of the language from the recent Supreme Court decision, and also the definitions that are already in state law, and maybe prevent litigation in the future.”

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