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Montana’s Two-Spirit People Are Contesting a State Law That Claims Sex Is Binary

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A member if the Two-spirit society
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It is a relatively peaceful time in many parts of the world. But the two-spirit people of Montana are gearing up for a fight. 

No, it is not against demons or ghouls. This fight will take place in court to challenge a state law that claims sex is binary. The law in question is the Senate Bill 458. 

It defines “male” and “female” based on the presence of XY or XX chromosomes and reproductive systems. The legislation, which took effect in October, integrates those definitions of male and female in the state’s legal code. This impacts driver’s licenses, demographic records, and the state’s anti-discrimination law.

Legal representatives of the Montana Two Spirit Society filed a lawsuit in Missoula County District Court challenging the law. Others who joined the suit, filed in October, include a group of transgender, intersex, and nonbinary Montana residents.

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They argue that the state’s definitions of sex “improperly categorizes many Montanans, excludes others from legal recognition entirely, and deprives them of the benefits and protections of myriad state laws.” 

The plaintiffs also argue that the law violates Montana’s dignity, equal protection, privacy, and freedom of speech laws. David Herrera, the co-founder and executive director of the Montana Two Spirit Society, said the group had to join the lawsuit because limiting gender kicks against Indigenous traditions.

“We don’t ascribe to just simply biologic definitions. We acknowledge that there are different genders, and our cultures have always known that there are more than two genders. In some Indigenous cultures, there may be as many as four to six different genders,” said Herrera.

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Montana Republican Governor Greg Gianforte and Montana Attorney General Austin Knudsen have been named as defendants in the case. Emilee Cantrell, a Montana Department of Justice spokeswoman, says the state will file an answer to the lawsuit by December 14.

Steven Barrios, a 71-year-old enrolled member of the Blackfeet Nation and co-founder of the Montana Two Spirit Society, says the organization supports efforts to repeal the state’s new gender definitions.

“We’ve already been traumatized through so many things that the government has done to us, and so we just figured it’s time – we have to step up and reclaim what’s rightfully ours and not let the government take that away from us,” Barrios said.

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Attorney Rylee Sommers-Flanagan, representing the plaintiffs, says it is essential to try to capture as many Montanan experiences as possible, including the Two-Spirit community.

He said: “It is a community that has existed for an incredible amount of time. The way these laws affect people is very real, and it’s a concrete and deeply felt experience.”

People like Montana’s two-spirit community have been facing discrimination in recent years because of their chosen identity. They believe that the best time to start fighting for their right to exist is now, and this lawsuit is a step in that direction. 

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