Montana Governor Signs Bill Defining ‘Male’ and ‘Female’

Montana became the latest state to legally define “sex” as only male or female.

The bill was one of several gender-related policies passed during a contentious legislative session, prompting a vitriolic protest from transgender-identifying Representative Zooey Zephyr that lead to an official censure. 

Governor Greg Gianforte signed Senate Bill 458 into law on May 19. The bill states that the term “female” refers to “a member of the human species who, under normal development, has XX chromosomes and produces or would produce relatively large, relatively immobile gametes, or eggs, during her life cycle and has a reproductive and endocrine system oriented around the production of those gametes,” including “an individual who would otherwise fall within this definition, but for a biological or genetic condition.”

Additionally, the state will now recognize “male” to mean “a member of the human species who, under normal development, has XY chromosomes and produces or would produce small, mobile gametes, or sperm, during his life cycle and has a reproductive and endocrine system oriented around the production of those gametes,” including “an individual who would otherwise fall within this definition, but for a biological or genetic condition.”

“‘Sex’ means the organization of the body parts and gametes for reproduction in human beings and other organisms. In human beings, there are exactly two sexes, male and female, with two corresponding types of gametes,” states SB 458. “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.”

State Senator Carl Glimm, who sponsored the bill, argued establishing an official definition for the term “sex” was necessary after a state judge ruled transgender-identifying people could alter the gender listed on their birth certificates. 

“That ruling — which conflated sex with gender — blocked a bill sponsored by Glimm the previous year that would have only allowed a birth certificate change if the person had undergone a gender-affirming surgical procedure,” reports AP News. “Montana’s health department later passed a rule saying that no changes could be made to the listed sex on a resident’s birth certificate unless it was incorrectly recorded due to a transcription error.”

The law was strongly opposed by LGBTQ advocates who say the definition excludes the full range of intersex or genderfluid people. The Human Rights Campaign said SB 458 “aims to strip away dozens of legal protections and rights for LGBTQ+ Montanans, particularly transgender Montanans — creating a colossal step backwards for LGBTQ+ people at a time when legislative assaults are at an all-time high.”

“Governor Gianforte had an opportunity to do the right thing. He chose not to,” Cathryn Oakley, the HRC’s state legislative director and senior counsel, said in a statement on May 22. “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.”

Another person opposed was David Gianforte, the governor’s son who identifies as gay and nonbinary. 

The 32-year-old formally met with his father on March 27 to oppose SB 458 and two other bills – SB 99, which limits the medical intervention that can be offered to minors who identify as transgender, and SB 359, which prohibits drag performances in public spaces. In his prepared statement, Gianforte said that the bills would  “significantly directly affect a number of [his] friends” and that he wanted “to make the argument that these bills are immoral, unjust, and frankly a violation of human rights.”

“I would like to better understand your thoughts and concerns. When can we get together to talk about it?” the governor replied in an email hours after the meeting, signing the correspondence, “Love, Dad.”

“Having grown up in a devout Christian household, raised on values his parents continue to publicly endorse, David said he attributes some Republican legislative support for the bills to lawmakers’ strongly held beliefs about how God created humans,” reported the Montana Free Press. “He also said he sees the political party system as unaccommodating to diverse perspectives, and thinks that pressure to conform might be a factor influencing his father, too.”

The elder Gianforte is Montana’s first Republican governor in 16 years.