IN CASE YOU MISSED IT: Two Recent Changes to Montana Law

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Patricia Tsipras

October 19, 2023

Montana Amends Elements of Wrongful Discharge

Effective October 1, 2023, Montana amended existing law to prohibit employers from discharging, disciplining, threatening to discharge or discipline, or retaliating against job applicants or employees for legal expressions of free speech on personal social media.  See 2023 MT SB 270.  The new law applies to all employers with employees performing work in Montana.

The new law does not apply if the expression violates the employer’s written policy or violates the terms or conditions of the employee’s employment contract.  It also does not apply to expression on social media accounts intended for business-related purposes.

Montana employers remain able to terminate an employee’s employment for using social media to disclose trade secrets; release proprietary, confidential or financial data; or conduct criminal defamation.

Montana Amends Its Anti-Discrimination (and Other) Laws to Define “Sex”

Also effective October 1, 2023, Montana enacted legislation that inserts binary, reproduction-based definitions of “male,” “female,” and “sex” into many sections of its statutory code, including its employment anti-discrimination laws.  See 2023 MT SB 458.  Pursuant to the new law:

• “Female” means a member of the human species that, under normal development, produces a relatively large, relatively immobile gamete, or egg, during her life cycle and has a reproductive and endocrine system oriented around the production of that gamete.
• “Male” means a member of the human species that, under normal development, produces small, mobile gametes, or sperm, during his life cycle and has a reproductive and endocrine system oriented around the production of that gamete.
• “Sex” means the organization of the body and gametes for reproduction in human beings and other organisms. In human beings, there are exactly two sexes, male and female, with two corresponding gametes.  The sexes are determined by the biological indication of male or female, including sex chromosomes, gonads, and nonambiguous internal and external genitalia present at birth, without regard to an individual’s psychological, chosen, or subjective experience of gender.

Montana’s prohibitions against sex discrimination now expressly reference the definition of “sex” above.

*Special thanks to Ava Petrellese, our Paralegal, for her contributions to this article.

The author of this article, Patricia Tsipras, is a member of the Bar of Pennsylvania.  This article is designed to provide one perspective regarding recent legal developments, and is not intended to serve as legal advice in Montana, Pennsylvania, or any other jurisdiction, nor does it establish an attorney-client relationship with any reader of the article where one does not exist.  Always consult an attorney with specific legal issues.