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

HELENA, Mont. — 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,…