Nicole Girten

(Daily Montanan) At least two nonbinary plaintiffs allege the state is asking them to commit fraud to comply with a law defining sex as binary — strictly male and female — in a new lawsuit filed by the Montana ACLU.

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.”

“With its unscientific definitions, SB 458 leaves persons trained in science baffled as to how to comply with both it and their medical and other scientific training,” the filing read.

Republican Gov. Greg Gianforte signed Senate Bill 458 into law in May after many long debates about the 63-page bill, sponsored by Sen. Carl Glimm, R-Kila.

The genesis for the bill came from the court fight that ensued after Senate Bill 280 passed in 2021. That bill restricted transgender Montanans from changing the gender marker on their birth certificates. The 2021 law was permanently enjoined earlier this year.

The Montana ACLU alleged SB 458 violates the Montana Constitution’s separation of powers provision, “which provides that the Courts – not the Legislature – are singularly empowered to interpret the provisions of Montana’s Constitution.”

The filing said the legislature’s “attempt via enactment of SB 458 to write ‘gender’ out of the Montana Code Annotated” is “an exercise of “a power properly belonging” to the judicial branch,” making it unconstitutional.

The lawsuit also says the sex definition law is vague in its applicability and violates the Montana Constitution’s requirement that each bill have “only one subject, clearly expressed in its title.”

“SB 458 violates this ‘single subject’ requirement by amending 41 sections in 20 different titles in the Montana Code Annotated,” a Montana ACLU press release said Tuesday.

Attorney General Austin Knudsen was listed as the defendant in the case. The Montana Department of Justice did not immediately respond to a request for comment.

Nonbinary plaintiff in the sex definition lawsuit Dandilion Cloverdale’s current federal passport lists “X” as the gender marker, aligning with their gender identity, and they also have a California birth certificate identifying them as nonbinary, according to the filing.

The lawsuit alleges the state refused to recognize Two-Spirit Cloverdale’s nonbinary gender when they tried to get a Montana State Identification card, distributed through the Montana Motor Vehicle Department, under the state Department of Justice’s purview, in October.

“The State told Dandilion they needed to pick male or female before the State would issue them a Montana state I.D., and Dandilion was forced to choose between committing fraud or not obtaining an I.D.,” the filing read. “As someone who repeatedly has been misgendered in public spaces, Dandilion is scared to think about being forced to misidentify themselves by providing a false identity.”

Nonbinary plaintiff Jamie Doe also worries about the inconsistencies between their federal “X” gender marker and their state identification. Doe works as a public health professional and worries the law requires them to misidentify themselves to receive care from the state, like admission to a hospital or purchase of insurance.

“They are afraid that they are currently forced by the state of Montana to have incongruent information on their state identification because the federal documentation recognizes their gender and the state of Montana refuses to do the same,” the filing reads.

Intersex plaintiff Jane Doe identifies as female, but worries as she does not meet the definition for either gender in law.

“She feels violated by the legislature’s attempt to intervene in her personal life in an area where they have an incorrect, unscientific understanding of gender and sex,” she said.

Other plaintiffs include menopausal woman Linda Troyerwho does not now have eggs, meaning she is excluded from the definition of female in SB 458, as well as transgender activist Shawn Reagor.

“SB 458 is ridiculous. I live my life as the man that I am, and that’s how people see me when I’m out in the world, but SB 458 attempts to erase that simple truth,” said Reagor in an ACLU of Montana release. “As a man who happens to be transgender, SB 458 could force me into women’s restrooms and locker rooms, the very thing this type of legislation claims to want to protect against.”

A group of Montana transgender, two-spirit, intersex and nonbinary residents sued over the constitutionality of this law in October.

National groups including the Human Rights Campaign spoke out about the bill as it moved during the legislature this spring.

The Montana Family Foundation was integral to the drafting of this bill.

Executive Director at the ACLU of MT Akilah Deernose said in a release SB 458 policy makers “seem to think they can simply legislate away the diversity of Montana’s residents.”

“By forcing Montanans into two specific boxes, Montana’s conservative movement is pushing a law that is both foolish and discriminatory,” Deernose said. “As if that weren’t enough, the bill falls short of numerous Montana legislative requirements, including accurate bill titles, specificity of legislative focus, and violation of due process. The whole thing should be thrown out.”