In the escalating Republican bid to curtail LGBTQ and transgender rights, Montana could become the fourth state to pass a law defining sex as strictly “male” or “female” and declaring it to be unchangeable, raising concern among LGBTQ advocates.
Governor Greg Gianforte, who has already authorized a bill to ban gender-affirming treatments for transgender minors this year, has until Sunday to sign or veto the new legislation, Senate Bill 458, or return it to the legislature for amendments.
Other states whose governors have already signed similar legislation are Tennessee and North Dakota. In Kansas, the Republican-dominated legislature overrode the veto of Democratic Governor Laura Kelly to enact its law.
Republican sponsors of the bills say they are not meant to discriminate against anyone, stressing that discrimination is already illegal.
“It seems 20 years ago nobody needed a definition of sex because everyone understood what it meant. But now there is a discrepancy about, ‘Is sex gender and can I change it?’ But sex you can’t change. Sex is just a fact,” said Montana state Senator Carl Glimm, who introduced SB 458.
Major medical and psychological associations endorse gender-affirming care and say transgender identities should be respected, but conservative groups claim that children are too easily allowed to transition at a time in their lives when they don’t fully understand the consequences.
The Human Rights Campaign (HRC), the largest advocacy group for lesbian, gay, bisexual, transgender and queer people in the United States, has labeled the laws as “erasure acts” aimed at forcing queer people back into the closet.
“We fear that these LGBTQ+ erasure acts could be the next type of anti-LGBTQ+ legislation to sweep the country,” HRC President Kelley Robinson told reporters this week.
These new laws define virtually everyone as either “male” or “female,” a determination made at birth based on anatomy and genetics that cannot change. The Montana law says sexes are determined “without regard to an individual’s psychological, behavioral, social, chosen, or subjective experience of gender.” The Tennessee and Kansas laws make no allowance for intersex people or individuals born with ambiguous genitalia or irregular chromosomes.
While researchers say sex generally refers to physiological characteristics and gender is more a social construct, when it comes to federal civil rights law, they are essentially the same. In the landmark 2020 decision in Bostock v. Clayton County, the U.S. Supreme Court found that discrimination protections based on “sex” also applied to sexual orientation and gender identity.
“By defining sex so narrowly, you are excluding LGBTQ people from bringing claims in state court based on discrimination on the basis of sex,” said Sarah Warbelow, HRC’s legal director.
So far this year, Republican legislators in statehouses across the country have introduced more than 500 bills affecting LGBTQ rights with a particular focus on transgender people. Around 50 have become law.
