Montana signs bill defining sex as male or female: Governor Gianforte’s fourth state to do so

The governor of Montana signed into law defining sex as strictly “male” or “female” and immutable, making his state the fourth to enact a legislature that supporters say reinforces common sense but critics say is an attempt to to erase the LGBTQ community.

Governor Greg Gianforte, who already passed a bill this year to ban gender-affirming treatments for transgender minors, signed Senate Bill 458 on Saturday.

“The new law codifies the long-recognised, commonsense-based, immutable, biologically-based definition of sex, male and female, while protecting people born intersex and not infringing on transgender people’s ability to identify with whatever sex whatsoever, but not with sex, they wish,” said the governor’s press secretary, Kaitlin Price.

Opponents said it was “one of the worst anti-LGBTQ+ laws in the whole country” and vowed to challenge it in court.

The bill follows a well-trodden path.

Gianforte joins other Republican governors in Tennessee and North Dakota who signed similar bills this year.

In Kansas, the Republican-dominated legislature overrode Democratic Governor Laura Kelly’s veto to enact the law.

The law, which takes effect October 1, distinguishes men and women by the presence of XY or XX chromosomes and the production of sperm and eggs “in normal development.”

It says: ‘In man there are exactly two sexes, male and female, with two corresponding types of gametes.

‘The sexes are determined by the biological and genetic indication of male or female, including sex chromosomes, naturally occurring sex chromosomes, gonads and unequivocal internal and external sex organs present at birth, without regard to an individual’s psychological, behavioral, social, chosen, or subjective experience of sex.’

An amendment added to the bill during heated debate states that the definitions include people “who would otherwise fall within this definition” of male or female “but because of a biological or genetic condition.”

Some medical experts have said formulations are insufficient for all intersex people with varying sex characteristics.

Experts disagree on the number of intersex people: some say the figure is as high as 1.7 percent of the population – a figure used by the United Nations – while others put the figure at 0.018 percent.

Critics, including transgender lawmakers SJ Howell and Zooey Zephyr, both Democrats from Missoula, said the bill would legally misdefine them and effectively write them out of state law.

“The reality is there are people living their lives, Montanans, our friends and community members, who don’t fit these definitions just because of their medical and biological realities,” said Howell, who is transgender nonbinary.

She told an April debate in the House: “Imagine my dismay to discover that a state like Montana, my state, my home, says the government knows better. There are two boxes, you have to choose, end of story.’

The Montana Human Rights Network said they will challenge the law.

‘Govern. Gianforte just signed SB 458,” they tweeted.

MHRN condemns this bill and the damage it will cause to the LGBTQ+ community.

“We are committed to working with members of the transgender, non-binary, Two Spirit and intersex community to ensure that SB 458 does not go into effect in October.”

Republican sponsors of the bills say they are not intended to discriminate against anyone, stressing that discrimination is already illegal.

“It seems like 20 years ago no one needed a definition of sex because everyone understood what it meant,” said Montana State Senator Carl Glimm, who introduced SB 458.

“But now there’s a discrepancy about, ‘Is sex gender and can I change that?’ But you can’t change sex. Sex is just a fact.’

The Human Rights Campaign (HRC), the largest lesbian, gay, bisexual, transgender and queer advocacy group in the United States, has labeled the laws as “removal acts” aimed at forcing queers back into the closet.

“We fear that these LGBTQ+ removal acts could be the next type of anti-LGBTQ+ legislation to sweep the country,” HRC President Kelley Robinson told reporters this week.

While researchers say that sex generally refers to physiological characteristics and gender is more of a social construct, they are essentially the same when it comes to federal civil rights.

In the landmark 2020 decision in Bostock v. Clayton County, the U.S. Supreme Court ruled that protections against discrimination based on “sex” also applied to sexual orientation and gender identity.

“Defining sex so narrowly excludes LGBTQ people from filing claims in state court alleging gender discrimination,” said Sarah Warbelow, HRC legal director.

The laws also restrict non-transgender people from filing a discrimination claim based on sex stereotypes, Warbelow said.

So far this year, Republican lawmakers in state houses across the country have introduced more than 500 bills impacting LGBTQ rights, with a particular focus on transgender people. About 50 have become law.