The ACLU of Montana – representing Montanans from across the State – filed a Complaint challenging a new law that seeks to erase 2S-LGBTQIA+ Montanans from dozens of sections of the Montana Code.

The ACLU of Montana has filed a lawsuit challenging a law that defines the word “sex” throughout state code as either male or female, based on a person’s biology at birth. The plaintiffs argue the law denies legal recognition and protections to people who are gender non-conforming.

It’s the third lawsuit stemming from Senate Bill 458 alone since Republican Gov. Greg Gianforte signed it into law in May. Gianforte this year signed legislation to ban drag events in public spaces and gender-affirming care for trans youth. None have escaped legal challenges so far.

The nonprofit’s lawsuit, filed this week in Missoula County District Court, requests the court declare the law unconstitutional in part as because it “potentially eliminates discrimination protections for transgender, intersex, and nonbinary people” in a number of settings, as well as protections from “discrimination in general under the Montana Human Rights Act.”

"The legislature seemed to be trying to adopt a quasi-medical definition of sex that actually, if you talk to any health care professional, is completely unworkable and is completely undefined to an ordinary Montanan," said Alex Rate, the Legal Director for the ACLU.

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.

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.

A group of transgender and intersex individuals are suing the state over a new law. Senate Bill 458 revised Montana Code to provide a common definition for the word “sex” when referring to a human.

The lawsuit filed in Montana state court similarly alleges the new state law redefining “sex” creates the potential for discrimination. The suit says the law requires the plaintiffs to misrepresent themselves or reveal private medical information when applying for a driver’s license or marriage license.

“If you start with the assertion that there are exactly two sexes, which is the literature of the bill, that’s an inaccurate statement,” Grantham said. The law’s attempt to separate sex from gender and ignore a person’s psychology, she continued, is also problematic and unscientific. “You can legislate whatever you want. You can say that gravity only applies when you’re at sea level, but that doesn’t change the fact that there’s gravity when we walk up a hill.”

Senate Bill 458 would eliminate legal recognition of transgender, nonbinary and intersex Montanans across 40 sections of state code. For example, it would bar them from being able to choose the gender marker on their birth certificate or driver's license.

Kole Burdick, 20, also of Bozeman, said it’s important to “uplift queer people and show moments of queer joy,” and commended Zephyr and Howell for their work.

“I think they’ve been working really hard to protect our community and keep our community safe, and I really appreciate them for that,” Burdick said.

The Legislative Fiscal Division note officially attached to the bill states that it would have no monetary effect on the state. But a later fiscal analysis from the Legislative Fiscal Division states that Senate Bill 458 could put all of Montana’s federal funding at risk due to how it might conflict with federal nondiscrimination law — that includes the Montana University System.

The Montana state legislature is considering a bill that would redefine sex based on reproductive capacity, in a move that some experts say would gut state-level non-discrimination statutes and effectively define trans, nonbinary and intersex people out of the law. If the bill is enacted into law, advocates worry that the first-of-its-kind legislation could be copied by anti-trans lawmakers in states around the country.

A February 2023 poll showed that 75% of Montanans oppose changes to our constitutional right to privacy, a right that affirms our ability to make personal healthcare decisions about when or whether to have children. Yet our Montana Sexual & Reproductive Health Collective members continue to track 11 anti-abortion bills still under consideration — including two potential constitutional amendments.

On Wednesday, representatives from the Human Rights Campaign, the nation’s largest LGBTQ rights organization, Georgetown University Law Center and the ACLU spoke about the bill, which they said may be the most radical bill in the country, even at a time when hundreds of bills dealing with the LGBTQ community are moving through legislatures throughout the U.S.

Financially, the cost of SB 458 could be billions. Morally, however, the cost to Montana will be immeasurable.

If the bill becomes law, it’s unclear how its directives would be carried out, and legal experts say its provisions would be easily challenged in court. But the immediate effect would be to prevent transgender and gender-nonconforming people from being protected by anti-discrimination laws, increase hostility and scrutiny of individual gender expression, and potentially cost the state billions in federal funds.

A deep-dive fiscal note requested by legislative Democrats and distributed Friday says Montana could lose “any, all or none” of its $7.5 billion federal special revenue authority — federal grants, in other words — if Senate Bill 458, legislation to define “sex” in Montana law, is enacted.