Residents file lawsuit challenging Montana’s attempt to narrowly define sex
A group of Montana transgender, two-spirit, intersex and nonbinary residents have filed a lawsuit in Missoula district court saying the Legislature’s newly minted narrow definition of sex isn’t just scientifically inaccurate, but the revamp of state law literally erases any legal protections they have.
They are asking the state court to declare the law unconstitutional and permanently bar the state from enforcing the far-ranging law.
The lawsuit, filed by attorneys at Upper Seven Law, document scientific evidence showing as many as 25 genes can be responsible for sexual development, including intersex expressions where residents have a combination of male and female physical and sexual traits.
However, the suit alleges it wasn’t just a legislative oversight that caused this new definition, they point to testimony given during the passage of Senate Bill 458, coupled with examples from state Republican lawmakers that demonstrate a hostility and disregard for residents who don’t identify or cannot be placed in the two biological categories mandate by the Legislature.
Attorneys for the group say that rewriting the law didn’t clarify anything, as the lawmakers had given as their reason for pushing SB 458, rather they were motivated by an animus against these groups, which comprise more than 1% of the population. Furthermore, attorneys say recasting the law robs them of the equal protection that would be afforded to almost any other Montanan.
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The 35-page court filing is replete with examples of lawmakers badmouthing the LGBTQIA community, which attorneys say help demonstrate their reasons for promoting SB 458.
For example, Sen. Theresa Manzella’s Instagram account was referenced. The Republican Hamilton Senator posted a meme on May 27 that read: “I won’t use someone’s pronouns for the same reason I won’t talk to a schizophrenics imaginary friends.”
During session, Rep. Jeremy Trebas, R-Great Falls, complained on X, formerly known as Twitter, that there are 94 genders as of 2023.
“Biological realities cannot be changed. You can’t just call yourself a female when you are a male. ‘Trust the science’ remember.(sic)The science is that there are xx and xy chromosomes. Sex equals gender, and there are two except in rare outlier cases,” the post read.
And one of the plaintiffs in the case alleges Rep. Greg Kmetz, R-Miles City, harassed her as she was transitioning, even asking if she had a vagina – an allegation the representative denied when reached on Thursday.
“He or she can say whatever, but there’s not a stitch of truth to that,” he said.
He admits they spoke about the transition, with Kmetz even asking who was paying for the medical bills, but he said the conversations remained “pleasant.”
The lawsuit contends while the comments and attitudes of the lawmakers helps bolster the argument their actions went beyond the need for legal clarity in state laws, the deliberate man-woman dichotomy the law has created intentionally puts the group’s life in danger, and cuts them out of many benefits. Furthermore, attorneys argue the law also forces some into categories that are not accurate, leading to a situation where an official could charge that intersex, nonbinary or two-spirit residents have broken the law by declaring one sex or another.
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Calling the lawmakers’ attempts at redefining “sex” in order to allow discrimination as “half-baked” and “discriminatory,” the suit points to Sen. Carl Glimm, R-Kila, and his rationale for sponsoring the law.
“Biological sex is immutable and that means you can’t change it,” Glimm said. “And there’s only two biological sexes.”
Attorney’s also looked into the legislative history of the bill to find former Montana lawmaker Jeff Laszloffy, who now leads the Montana Family Foundation, to be a key part of the bill. In fact, after Glimm requested a draft of the legislation, he referred all other questions to Laszloffy, who helped usher the bill into its final form.
“SB458 purposefully excludes plaintiffs from social and political community, deliberately reduces their value, forces them to disclose private medical and biological information, and requires them to misgender themselves,” the lawsuit said.
The lawsuit also points out as SB 458 changed references to male and female in Montana, it also rewrote a number of circumstance where intersex, nonbinary or two-spirit people may be excluded or forced into an inaccurate definition of who they are. Moreover, the court filings give examples of how the law has already affected some of them.