As they fight to reclaim their history, some in Montana’s Two-Spirit community are challenging a state law that defines sex as binary because it “infringes” on their spiritual and cultural beliefs. The law, Senate Bill 458, defines “male” and “female” based on the presence of XY or XX chromosomes as well as reproductive systems. The legislation, which took effect in October, inserts those definitions of male and female in several parts of the state’s legal code, impacting driver’s licenses, demographic records, and the state’s anti-discrimination law. In the same month, attorneys representing the Montana Two Spirit Society along with a group of transgender, intersex, and nonbinary Montana residents, filed a lawsuit challenging the law. They argue the state’s definitions of sex improperly categorize many Montanans, exclude others from legal recognition entirely, and deprive them of the benefits and protections of myriad state laws. The complaint also argues the law violates Montana’s dignity, equal protection, privacy, and freedom of speech laws. Two-Spirit is an umbrella term that emerged in the 1990s, referring to people in many Indigenous and Native Americans who historically had both a masculine and feminine spirit, and who filled specialized social and spiritual roles. But, some LGBTQ+ Native American people also use the term to self-identify.
