Transgender, intersex Montanans challenge law defining ‘sex’ as binary

Attorneys for a group of transgender and intersex Montanans said this week that they have filed a lawsuit challenging a new law that enshrines binary, reproduction-based definitions for “male,” “female” and “sex” across the state’s legal code.

The law, Senate Bill 458, was passed by this year’s GOP-controlled Legislature, despite vigorous opposition from Democrats and LGBTQ+ rights groups, and signed by Gov. Greg Gianforte, a Republican whose nonbinary adult child was among the bill’s public opponents.

Proponents, including bill sponsor Sen. Carl Glimm, R-Kila, argued during the session that the bill was intended to separate what they consider the “immutable” concept of sex from socially constructed conceptions of gender. As the governor signed the bill, a Gianforte spokesperson said it protected “commonsense” definitions of sex without infringing on Montanans “ability to identify with whatever gender, but not sex, they wish.”

The version of the bill that became law draws clear lines between “male” and “female” sex based on the presence of XY or XX chromosomes and the production of sperm and eggs “under normal development.” It also specifies that its definition of “sex” applies to large swaths of state code, including statutes that govern drivers’ licenses, mental health commitments, marriage licenses, demographic records and the state’s anti-discrimination law, the Montana Human Rights Act.

The plaintiffs in the new challenge, filed in Missoula County District Court, maintained they don’t neatly fit into the categories the law imposes, arguing that the legislation’s definitions are “unscientific,” “unworkable” and deprive them and other Montanans of legal recognition and protection from discrimination.

They argued that the law “purposefully excludes Plaintiffs from the social and political community, deliberately reduces their value, forces them to disclose private medical and biological information, and requires them to misgender themselves.”

“Laws that prohibit sex-based discrimination do so whether that discrimination is based on perceived biological differences between sexes or arises from the ways people behave, present, and identify in relation to their sex,” wrote the plaintiffs’ attorneys.

They’re asking a judge to declare the law unconstitutional and prevent its enforcement.

The plaintiffs include two transgender women and one transgender man, as well as two plaintiffs who are intersex or androgynous. Also joining the lawsuit as an organization is the Montana Two Spirit Society, a nonprofit that advances the understanding of Indigenous “Two Spirit” traditions that it says don’t necessarily conform with western notions of gender.

Many of the plaintiffs maintained that they have been subjected to harassment, discrimination and legal uncertainty as a result of their gender expression. Both intersex plaintiffs also said their XY chromosomes — defined as “male” under the new law — are misaligned with the female genders they were assigned at birth based on their external genitalia.

The group is represented by Upper Seven Law, a progressive nonprofit law firm based in Helena. Upper Seven staff said they filed the lawsuit Wednesday afternoon.

The lawsuit names Gianforte and Attorney General Austin Knudsen, also a Republican, as defendants.

Knudsen’s office declined to comment on the merits of the lawsuit Thursday, saying it hadn’t yet been formally served with the case. Gianforte’s office also declined to comment on the case, and Glimm, the bill sponsor, didn’t respond Thursday to either a voicemail or an email soliciting his perspective on the suit.

MTFP reporter Mara Silvers contributed reporting.

Editor’s note: Plaintiff Eden Atwood is married to MTFP Editor Brad Tyer. Tyer recused himself from the production of this piece, which was edited by Nick Ehli.