Montana signing bill defining sex as binary compared to legislating that Earth is flat

Montana governor Greg Gianforte wearing a jacket in a bar.

Montana has introduced a Republican-backed law that defines “sex” as binary – excluding intersex, non-binary and trans people – in a charter that has been deemed “inaccurate” by a medical expert.

Senate Bill 458 was signed into law on Saturday (20 May) by governor Greg Gianforte, who also enacted a controversial ban on gender-affirming healthcare last month.

The latest law, set to take effect from 1 October, defines people based on their “biological” sex as identified at birth.

It distinguishes males and females by XY or XX chromosomes and the production of sperm and eggs “under normal development”, with an amendment to the bill stating that its definitions include people “who would otherwise fall within this definition” of male or female “but for a biological or genetic condition”. 

But the law’s phrasing has been criticised by Dr Erin Grantham, a pediatric urologist at Billings Clinic, a non-for-profit health care organisation in the state, who told the Montana Free Press that the bill’s definition of sex “doesn’t make sense”. 

She explained: “If you start with the assertion that there are exactly two sexes, which is the literature of the bill, that’s an inaccurate statement.

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“You can legislate whatever you want. 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.”

Grantham suggested that Montana would benefit from a third “sex” option, adding that ruling out intersex people “is an absolutely terrible way to run a society”. 

‘Biologically based definition of sex’

On Monday, the Republican governor’s office announced: “The new law codifies the long-recognised, common-sense, immutable, biologically based definition of sex, male and female, while protecting people born intersex and not infringing on transgender individuals’ ability to identify with whatever gender, but not sex, they wish.”

Referring to the bill, trans representative Zooey Zephyr told PinkNews that you “cannot legislate that sex is binary any more than you could legislate that the Earth is flat”. 

The Democrat has been vocal in opposing Republican’s anti-LGBTQ+ bills, which saw her banned from the floor of the state’s House of Representatives.

‘There’s two boxes, you’ve got to choose’

Trans representative SJ Howell said of the law: “Imagine my dismay at discovering that a state like Montana, my home, says the government knows better. There’s two boxes, you’ve got to choose, end of story.”

Ahead of SB 458 passing, Zephyr told PinkNews she was certain the wave of “extremism” that she believes is gripping the Republican party is “deeply out of step” with what US voters actually believe.

A survey of US voters conducted by Fox News corroborated that, with at least 83 per cent reportedly thinking that political attacks against trans children are a problem.