Montana Governor, Who Has Nonbinary Child, Defines Sex as Binary

Montana Gov. Greg Gianforte has signed three more anti-LGBTQ+ bills into law, including one that activists are calling the “LGBTQ erasure act,” defining sex as binary and determined by reproductive capacity.

Gianforte, a Republican, announced Saturday that he had signed the bill. Also, he signed one allowing public schools to out transgender students to their parents and one that will let parents withdraw their children from school if they object to the day’s lesson plan.

The “erasure” legislation, Senate Bill 458, defines sex based on their chromosomes and their reproductive characteristics — females by their ability to produce an egg and males by their ability to produce sperm, “under normal development.” Those who can’t do so because of a condition present at birth will be defined according to their “nonambiguous” genitalia, the bill reads. Intersex people will be assigned a gender based on the characteristic deemed predominant. The bill’s provisions affect more than 40 sections of state law.

“In human beings, there are exactly two sexes, male and female, with two corresponding types of gametes,” the legislation reads. “The sexes are determined by the biological and genetic indication of male or female, including sex chromosomes, naturally occurring sex chromosomes, gonads, and nonambiguous internal and external genitalia present at birth, without regard to an individual’s psychological, behavioral, social, chosen, or subjective experience of gender.”

It was drafted with advice from the Montana Family Foundation, an anti-LGBTQ+ organization, and its sponsor, Republican Sen. Carl Glimm, “framed the policy as a response to a rise in people identifying as transgender,” the Montana Free Press reports.

Language added to the bill toward the end of the legislative session says it includes people “who would otherwise fall within this definition” of male or female “but for a biological or genetic condition.” But medical professionals say that’s not inclusive of all intersex people, and trans and nonbinary people say the measure excludes them from state law.

“If you start with the assertion that there are exactly two sexes, which is the literature of the bill, that’s an inaccurate statement,” Dr. Erin Grantham, a pediatric urologist, told the Free Press. She also said it’s unscientific to ignore the role of psychology. “You can legislate whatever you want,” she said. “You can say that gravity only applies when you’re at sea level, but that doesn’t change the fact that there’s gravity when we walk up a hill.”

State Rep. SJ Howell, a Democrat who is nonbinary, objected to the bill during debate in April. “The reality is that there are people who are out living their lives, Montanans, our friends and community members, who do not fit into these definitions just because of their medical and biological reality,” Howell said at the time, according to the Free Press. The lawmaker added, “Imagine my dismay at discovering that a state like Montana, my state, my home, says the government knows better. There’s two boxes, you got to choose, end of story.”

One of Gianforte's children is nonbinary.

The legislation could harm Montana financially, civil rights activists say. Federal agencies that fund state universities and other institutions have the right to deny money to those that discriminate, and if these agencies do so, it could cost the state up to $7.5 billion, half its annual budget.

The outing bill, Senate Bill 518, requires school districts to establish “procedures by which a parent shall provide written consent before the parent's child uses a pronoun that does not align with the child's sex,” as the legislation reads. “If a parent provides written consent under this subsection … a person may not be compelled to use pronouns that do not align with the child's sex.” It also calls for written parental permission for students to participate in school-sponsored clubs and other extracurricular activities.

House Bill 676, which provides for the school withdrawals, additionally says public employees, except for law enforcement, can’t “encourage or coerce” a child to withhold health information from parents — something that could result in outing too — and requires parental consent if a child rooms with “an individual of the opposite sex” on a school-sponsored trip, something that could affect trans youth.

The Human Rights Campaign denounced Gianforte’s signing of the bills, which comes after he OK’d legislation banning gender-affirming health care for trans minors last month despite his nonbinary son's opposition. “Governor Gianforte had an opportunity to do the right thing. He chose not to,” said a statement from HRC State Legislative Director and Senior Counsel Cathryn Oakley. “These bills will not only make life harder on LGBTQ+ folks across the state of Montana, but they will also put half of Montana’s annual budget at risk as well. That’s a high price to pay to please the fringe elements of your political base. The people of Montana deserve better.”

The new batch of bills was signed after the legislative process for SB 99, which banned certain gender-affirming care, was particularly contentious. Democratic Rep. Zooey Zephyr, one of the first trans lawmakers in Montana, told her colleagues they’d have “blood on your hands” if they approved the bill. Republicans, who hold a majority in the legislature, then barred Zephyr from speaking on the House floor for the rest of the session. Some citizens who came to the capitol to demonstrate their support for her were arrested. Gianforte signed that bill into law in late April.