Transgender, intersex group files lawsuit in Montana
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 alleges the bill violates the Montana Constitution and forces gender diverse people to misidentify themselves.
The suit was filed Wednesday in District Court.
Upper Seven Law released the following information:
On Wednesday, a group of transgender and intersex individuals and the Montana Two Spirit Society filed a lawsuit challenging the constitutionality of Senate Bill 458 (“SB 458”), which codifies an unscientific sex and gender binary.
The law effectively eliminates state law protections and benefits for all gender nonconforming Montanans. The bill violates the Montana Constitution’s rights to privacy, dignity, equal protection, and freedom of speech, as well as the First Amendment to the United States Constitution.
SB 458 divides human beings into two exclusive categories—female or male. “Sex,” a term that appears in approximately 40 sections of the Montana Code, is now defined as exactly one of two “without regard to an individual’s psychological, behavioral, social, chosen, or subjective experience of gender.” The law also defines “female” and “male” using imprecise references to reproductive capacity—i.e., sex “chromosomes” and “gametes”—and applies these definitions throughout the Montana Code, affecting everything from discrimination in employment and public accommodations to inmate classification, marriage licenses, cemetery association records, and driver’s licenses.
As a result, SB 458 removes protections in these arenas and others and compels gender diverse people to misidentify themselves on important government forms in a highly personal way. It forces them to disclose private medical and biological information in nearly all aspects of public life. Incredibly, the law ignores intersex conditions as well, compelling intersex Plaintiffs to identify as a sex they were not even assigned at birth. More fundamentally, SB 458 purposefully excludes all trans, nonbinary, intersex, and Two Spirit people from the social and political community, devaluing them and actively refusing to recognize their inherent human worth.
SB 458 serves no legitimate state interest. The bill’s sponsor made clear that it was passed to ensure that legal protections against “sex” discrimination would no longer include “gender” discrimination. He claimed that confusion between the meaning of sex and gender required clarification. Tellingly, the bill makes no attempt to define the term “gender.”
“This is just as much an attack on tribal sovereignty as it is on the LGBTQ+ community,” said David Herrera, the co-founder and executive director of the Montana Two-Spirit Society. “SB 458 continues what colonization has always tried to do—which is to eradicate Two Spirit culture.”
“I am challenging this law because it took me decades to find personal peace—and now the state is trying to take that away from the next generation,” said Susan Edwards, a trans woman who lives in a small community in Eastern Montana. “I stand with the next generation and against discrimination.”