Advocates Say Montana Bill Would Erase Trans And Nonbinary Identities

The Republican-backed legislation seeks to legally define sex based solely on reproductive biology.

Republicans in Montana are moving forward with legislation that advocates say would effectively eliminate the legal existence of trans, nonbinary, two-spirit and intersex people in the state by codifying the definition of sex to be based on a person’s reproductive system.

The 61-page bill, SB 458, is part of a torrent of anti-LGBTQ legislation that Republicans are seeking to implement nationwide. According to experts, the bill would leave trans, nonbinary and two-spirit folks out of policies against discrimination and would ban same-sex marriage, among many other legal implications. (Same-sex marriage is currently protected by federal law.)

“I think this bill is trying to solve a problem that doesn’t really exist, and in doing so, they’re using a really faulty understanding of biology to try to change the legal code in ways that I don’t think they’ve fully thought through,” Dr. Lauren Wilson of the American Academy of Pediatrics told HuffPost.

Introduced in late February by Montana state Sen. Carl Glimm and passed via an initial vote in the state Senate, the bill would define sex as “the organization of the body and gametes for reproduction in human beings and other organisms” and states that among human beings, “there are exactly two sexes, male and female, with two corresponding gametes.”

In order to be considered a female, the bill says, a person would have to produce “a relatively large, relatively immobile gamete, or egg, during her life cycle” and have “a reproductive and endocrine system oriented around the production of that gamete.” For males, a person would have to produce “small, mobile gametes, or sperm, during his life cycle” and have “a reproductive and endocrine system oriented around the production of that gamete.”

After some debate, the bill was amended to include some exceptions for intersex individuals, who are born with anatomy or chromosomes that don’t fit into a male or female binary. However, the bill forces these individuals to align with the male or female gender, ignoring years of biological research that recognizes the existence of dozens of variations on the intersex spectrum.

Wilson added that some intersex people are not easily or neatly placed into the bill’s definitions of male or female.

“Some intersex people, they identify themselves as a third category,” Wilson said. “Having the definitions really be centered around people’s reproductive capacity means that there are certain people who just will never be able to be categorized that way. And this bill appears to give them no legal status whatsoever,” she added.

“This misdefining of sex has massive implications on everyone in the state of Montana.”

- Shawn Reagor, Montana Human Rights Network

Experts say the bill would make it nearly impossible for people who don’t fall into the bill’s stringent categories of sex to live in Montana without misgendering themselves, outing themselves or facing everyday roadblocks.

“This misdefining of sex has massive implications on everyone in the state of Montana,” Shawn Reagor, the Montana Human Rights Network’s director of equality, told HuffPost. “The bill itself is 61 pages long and touches over 41 pieces of code and inserts these inaccurate and frankly disturbing definitions of sex that are definitions that take us back hundreds of years of understanding of biology and completely erase intersex people and try to miscategorize trans people.”

Kyndra Nevin, a volunteer at the Montana Gender Alliance, told HuffPost that the bill is likely the “worst thing” they’ve ever seen in anti-trans legislation efforts nationwide.

“It seems like the point is the cruelty, and as hard as they can make it for trans people to exist in this state the better, as far as they’re concerned. Basically, it seems like it’s just a campaign to drive trans people out of public life in Montana, and maybe out of the state altogether,” Nevin said. “Because this bill is so bad that it’s going to make it harder for all of us to navigate public life altogether, everywhere from looking for jobs, trying to get into schools, things like that. They’re basically erasing us from, I guess, existence, as far as being defined as a person in Montana.”

Montana lawmakers have passed other harsh pieces of anti-LGBTQ legislation, such as SB 99, a bill aimed at limiting gender-affirming care for minors that is currently awaiting a vote in the state House. There’s also been an effort, by way of HB 359, to ban minors from attending drag shows. The House approved it on Feb. 24, and the bill currently sits in the Senate.

According to the Movement Advancement Project, approximately 30,000 people in the state 13 and older identified as LGBTQ as of 2020. But Montana Republicans’ outsized obsession with implementing policies to muzzle LGBTQ expression and identities in its culture war persists.

“I think it’s really important that people know, especially folks in the trans, nonbinary and two-spirit community know, that there are people that are fighting for them and that we will do everything that we can to prevent these bills from being implemented,” Reagor told HuffPost. “And whether they’re in Montana or Louisiana, trans people belong in this country. We’ve been here for thousands of years, and we’re going to continue to exist.”

Glimm, the bill’s author, did not immediately respond to HuffPost’s request for comment.

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