Montana is teetering on the edge of becoming the fourth state to enact a law strictly defining sex as binary and unchangeable, eliciting apprehension among LGBTQ advocates. This legislative trend among Republican bills, targeting transgender rights, has prompted alarm within the LGBTQ community.
Governor Greg Gianforte, who has already authorized a bill prohibiting gender-affirming treatments for transgender minors earlier this year, now faces a crucial decision on Senate Bill 458. He must either sign or veto the legislation, or return it to the legislature for possible amendments, before the approaching Sunday deadline.
If Governor Gianforte signs the bill, he will join the ranks of fellow Republican governors in Tennessee and North Dakota who have already enacted similar laws this year. In Kansas, the Republican-dominated legislature successfully overrode the veto of Democratic Governor Laura Kelly to implement their own version of the law.
The proponents of these bills, all Republicans, assert that their aim is not to discriminate against anyone, emphasizing that discrimination is already unlawful. Montana state Senator Carl Glimm, the sponsor of SB 458, argued, “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.”
While major medical and psychological associations endorse gender-affirming care and emphasize the importance of respecting transgender identities, conservative groups claim that children are transitioning too easily.
The Human Rights Campaign (HRC), the largest advocacy group for LGBTQ+ individuals in the United States, has labeled these laws as “erasure acts” designed to push queer people back into the closet. HRC President Kelley Robinson expressed concerns that these laws could become the next wave of anti-LGBTQ+ legislation sweeping the country.
These newly proposed laws define individuals as either “male” or “female” based on their anatomy and genetics at birth, disregarding an individual’s psychological, behavioral, social, chosen, or subjective experience of gender. The Tennessee and Kansas laws do not account for intersex people or individuals born with ambiguous genitalia or irregular chromosomes.
While researchers differentiate between sex as physiological characteristics and gender as a social construct, federal civil rights law treats them as essentially the same. In the landmark 2020 Bostock v. Clayton County decision, the U.S. Supreme Court determined that discrimination protections based on “sex” also encompassed sexual orientation and gender identity.
Sarah Warbelow, HRC’s legal director, expressed concerns, stating, “By defining sex so narrowly, you are excluding LGBTQ+ people from bringing claims in state court based on discrimination on the basis of sex.” Additionally, these laws could limit the claims of nontransgender individuals who face discrimination based on sex stereotyping.
Tennessee State Representative Gino Bulso, the sponsor of the recently signed bill in his state, affirmed that discussions surrounding the Bostock decision or federal anti-discrimination laws did not arise during the debate. Bulso clarified, “This just deals with sex. This bill is not going to affect the term gender, wherever it may happen to be used.”
This year, Republican legislators across the country have introduced over 500 bills concerning LGBTQ+ rights, with a particular focus on transgender people. Approximately 50 of these bills have already become law.
