Sex, Law, and the Last Best Place

Montana has passed some of the most clearly sex-realist legislation in the country — and its courts are using one of the most expansive state constitutions in the country to block it. This week, Jamie sits down with Derek Oestericher, Chief Legal Counsel and Director of Government Affairs at the Montana Family Foundation, for a deep dive into three active cases that will shape not just Montana law, but the national conversation about what “sex” means as a legal category.The episode opens with Jamie’s breakdown of the legal landscape: SB 458, which defined “sex” throughout Montana’s statutes as biological sex determined at birth; the Kalarchik case challenging the state’s birth certificate and driver’s license policies; the Cross case, in which a 2023 pediatric gender medicine ban has been enjoined; and the Perkins bathroom case, currently enjoined at the trial court level. Jamie explains why these cases are still very much alive despite the preliminary injunctions — and why the distinction between a ruling on an injunction and a ruling on the merits is one the public almost always gets wrong.Then Derek Oestericher takes us inside the litigation: what Montana’s equal protection clause actually says, why it differs from the Fourteenth Amendment, how a right to privacy is being invoked to challenge a law protecting minors from medical intervention, and what a meaningful legal win looks like at each level of the courts.GuestDerek Oestericher is Chief Legal Counsel and Director of Government Affairs at the Montana Family Foundation, where he has been working on all three of Montana’s active sex-definition cases from the inside. He is among the most informed legal voices on Montana’s constitutional landscape as it applies to sex-based law.Resources* Montana SB 458 (2023) — Montana’s statutory definition of sex* Kalarchik v. State of Montana — Montana Supreme Court ruling on the preliminary injunction* Justice Rice’s dissent in Kalarchik* Cross v. State of Montana — pediatric gender medicine ban litigation* Perkins v. State of Montana — bathroom law litigation* Montana Family Foundation — montanafamily.orgIf this episode was useful to you, please share it with someone who needs to hear it. Like, subscribe, and leave us a review wherever you listen — it’s one of the most direct ways you can support the work we’re doing. This show exists because you show up for it.Stay Informed and Ready to Dissent. This is a public episode. If you'd like to discuss this with other subscribers or get access to bonus episodes, visit informeddissentpodcast.substack.com/subscribe