Darrell Ehrlick

(Daily Montanan) Opponents of Montana’s narrow definition of sex throughout state law say it’s easy to illustrate the problem with the new definitions outlined in Senate Bill 458, passed in 2023.

In a new lawsuit filed this week, they argue lawmakers explicitly stated that an employer can discriminate against a person who identifies as transgender, and face no consequences. However, if an employer chose not to hire somebody because she is a female, that would be discrimination.

That’s just one of the examples — and problems — with the state’s first-of-its-kind attempt to narrowly define sex as binary, male or female, the plaintiffs allege.

In the lawsuit filed by Two Spirit and intersex individuals, plaintiffs say that the Montana Legislature cuts them out of their constitutionally protected rights, and that Senate Bill 458 should be struck down.

“Stated differently,” the lawsuit contends, “if a cisgender man is denied employment for appearing as a man, he has a remedy under the Montana Human Rights Act; if a transgender or Two Spirit man is denied employment for appearing as a man, he has no remedy under the MHRA.”

It’s the second legal challenge of the bill winding its way through Montana courts currently.

Montana lawmakers, led by a supermajority of Republicans, said that implementing Sen. Carl Glimm’s legislation was necessary because of the confusion about gender identity and sex. Those lawmakers argued that there are only two sexes, male and female.

But a group of residents, represented by Upper Seven Law, say that ignores science and culture, and discriminates against a swath of Montanans, including intersex and Two Spirit people.

The Montana Attorney’s General Office, which will represent the state in the court cases, did not respond to the Daily Montana when asked for comment.

Attorneys filed the suit in Missoula County before Judge Leslie Halligan. They’ve asked the judge for summary judgment in the case, which means that they believe the issue is a question purely of law, and does not need a full trial because the facts are not disputed.

In their motion, they argue that the state did not have a compelling interest by passing the law and its rationale would not hold up to constitutional scrutiny.

Lawyers argue that Senate Bill 458 is a violation of equal protection and privacy laws, and treats transgender residents differently, forcing them to choose a strict gender definition that is not accurate. Furthermore, they say it discriminates because it forces intersex and transgender residents to disclose private information that is not required of cisgender residents, for example when applying for a marriage or driver’s license.

In fact, by using posts from legislators’ social media accounts, the attorneys argue that lawmakers had few other reasons to pass the law other than to antagonize transgender and Two Spirit residents.

“I won’t use someone’s pronouns for the same reason I won’t talk to a schizophrenic’s imaginary friends,” said Sen. Theresa Manzella, R-Hamilton, after SB 458’s passage.

The court brief contains several examples of Montana lawmakers’ social media posts as evidence of antipathy against transgender, Two Spirit and intersex residents that attorneys claim was motivating them to pass the law.

Attorneys for the group argue that Montana’s constitution makes protections even stronger than the protections in the federal constitution. While the court filing points out that discrimination because of gender has been ruled as discriminatory by the federal courts, the state’s constitution doesn’t just protect individuals, but cultures.

“The gender identities of Two Spirit people do not align with sex as defined in Senate Bill 458 because many Indigenous cultures reject the gender binary,” the court documents said.

Moreover, it forces some Montanans to lie on documents, putting them in an untenable position.

“(SB 458) makes the benefits and protection of Montana law contingent upon gender misidentification. And it commands plaintiffs to misgender themselves on marriage application and driver’s licenses,” the court filing said. “SB 458 infringes plaintiffs’ right to privacy and is thus subject to strict scrutiny, which it cannot survive.”

Strict scrutiny is the highest level of judicial scrutiny or attention, which means that when constitutional protections are at stake, the state must show that it has a compelling reason to craft the law, and that the law is narrowly tailored to achieve that compelling interest.

“By reducing plaintiffs’ identities to their reproductive capacities, SB 458 fails to recognize and acknowledge plaintiffs’ personhood,” the lawsuit claims. “Taking legislators at their word, they passed SB 458 because they thought sex was confused with gender. But correcting confusing terminology is not a compelling interest and cannot justify discrimination.

“SB 458 not only fails to clarify the distinction between sex and gender, it exacerbates any confusion … And it applies biological terms to law that have little to do with chromosomes and in fact, target stereotypes about gender roles.”

“Young trans people in Montana feel as if they are doomed, in part because of bills like SB 458,” said Kael Fry, a psychotherapist and transgender plaintiff in the case. “SB 458 is regressive; it sends a clear message to trans Montanans that their State doesn’t want them, and it signals to transphobic people and businesses that they are free to harass and discriminate.”