ACLU of Montana challenges law defining the word 'sex' in state code as only male or female

The ACLU of Montana has filed a lawsuit challenging a new law that defines the word “sex” throughout state code as only male or female, based on a person’s biology at birth

Transgender Rights Montana (Thom Bridge, Independent Record)

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.

The plaintiffs — a transgender man, a two spirit Native American, a nonbinary person, an intersex individual and a nurse practitioner — also moved for a summary judgement in Monday's filing in state court in Missoula, asking for the law to be declared unconstitutional.

Republican lawmakers who supported the bill “seem to think they can simply legislate away the diversity of Montana's residents,” Akilah Deernose, the executive director of the ACLU of Montana, said in a statement.

The sponsor of the legislation said it was needed to clarify from a legal standpoint that the words “sex” and “gender” aren't interchangeable. That was in response to a ruling by a state judge in 2021 that overturned a law that said people had to have a surgical procedure before they could change their sex on their birth certificate. The judge ruled the law was vague because it didn't define what type of surgery was needed and that transgender individuals should be able to change their gender on such documents.

Tennessee, Oklahoma, North Dakota, Nebraska and Kansas have similar provisions in place. In Kansas, a law defining male and female has prevented Democratic Gov. Laura Kelly’s administration from allowing transgender people to change their driver’s licenses and birth certificates, but transgender residents are challenging its constitutionality.

Another lawsuit challenging the same Montana law was filed in October. The Attorney General's office said the law “reflects scientific reality," provides “objective definitions of terms used widely in Montana law,” and is meant to protect victims of sexual assault, the safety of females in sports and ensure the separation of prison populations by sex for safety.

The ACLU lawsuit argues the definitions of male and female in Montana's law are “scientifically imprecise and erroneous."

The law defines a female as having XX chromosomes, and a reproductive and endocrine system that produces or would produce ova, or eggs. Plaintiff Linda Troyer, a nurse practitioner, argues the definition of female is scientifically incorrect because females are born with all the eggs they will ever have, do not “produce” them, and therefore she does not fall under the definition of female.

Male is defined as having XY chromosomes and a biological system that produces or would produce sperm.

The law, which took effect Oct. 1, also says anyone who would fall under the definition of either male or female, “but for a biological or genetic condition,” would be classified under their initial determination of male or female at birth.

A plaintiff, identified as Jane Doe, said it was clear lawmakers didn't understand what it means to be intersex, the ACLU statement said.

For thousands of years, Indigenous communities have recognized people who are two-spirit — neither male nor female — said Dandilion Cloverdale, another plaintiff, but Montana's law does not recognize that gender identity.

Cloverdale has a federal passport listing their gender identity as “X," or nonbinary, and a California birth certificate that identifies them as nonbinary, but Montana requires them to identify as either male or female before obtaining a state identification, the complaint states.

The lawsuit also alleges the bill violates the state Constitution's requirement that legislation must contain only one subject, noting it amended 41 sections in 20 different titles in state law including education, human rights and social services and how the words “female,” “male” and “sex” are defined on birth certificates, driver's licenses, insurance documents, cemetery records, marriage certificates and wills.

The law “potentially eliminates discrimination protections for transgender, intersex, and nonbinary people in hospitals, employment, physician’s family practices, grant funding for (the) Montana arts council, and freedom from discrimination in general under Montana’s Human Rights Act,” the complaint states.