Why Montana’s Two-Spirit people are challenging a state law that defines sex as binary

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 October, attorneys representing the Two-Spirit nonprofit Montana Two Spirit Society along with a group of transgender, intersex and nonbinary Montana residents, filed a lawsuit in Missoula County District Court challenging the law.

They argue 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 complaint also argues the law violates Montana’s individual dignity, equal protection, privacy and freedom of speech laws.

David Herrera, co-founder and executive director of the Montana Two Spirit Society, said it was important for the group to join the lawsuit because limiting gender goes against Indigenous traditions and cultures.

“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 of the Indigenous cultures, there may be as many as four to six different genders,” said Herrera, a 61-year-old who is Two-Spirit and adopted Blackfeet.

The lawsuit names Montana Republican Gov. Greg Gianforte and Montana Attorney General Austin Knudsen as defendants. A spokesperson for the governor told CNN the governor’s office “generally doesn’t comment on ongoing litigation.” Emilee Cantrell, a spokeswoman for the Montana Department of Justice, said the state is expected to file an answer to the lawsuit by December 14.

Two-Spirit is an umbrella term that emerged in the 1990s, referring to people in many Indigenous and Native American who historically had both a masculine and feminine spirit, and who filled specialized social and spiritual roles. Some Native American people who are lesbian, gay, bisexual, transgender, intersex or gender non-conforming also use the term to self-identify.

Prior to colonization, Two-Spirit people had roles of honor in healing and ceremonies, but as Indigenous people were forced into assimilation that part of their tradition was lost.

“For folks that were seen as being Two-Spirit, men dressing as women, or women dressing as men and warriors, that went against the teachings of the church and so they were seen as an abomination or deviance. In some of the histories, our Two-Spirit people were actually murdered and killed, while in others, they were forced to subscribe to specific gender roles,” Herrera said.

Steven Barrios, a 71-year-old enrolled member of the Blackfeet Nation and co-founder of the Montana Two Spirit Society, said the organization supports efforts to fight back against 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.

Barrios added SB 458 and similar legislation could add more challenges for Two-Spirit youth.

“It’s scary, in our reservations we have a lot of suicide already because of just being who they are,” Barrios said.

An estimated 6% or 285,000 American Indian and Alaska Native-only adults who live in the United States identify as LGBTQ, according to a 2021 study by the Williams Institute at the UCLA School of Law.

While many things have changed since colonization, violence aimed at LGBTQ Indigenous people and Two-Spirit individuals remains prevalent, and they experience high levels of mental health issues.

Researchers found 43% of Indigenous LGBTQ adults have been diagnosed with depression, compared to less than 25% of their non-LGBTQ counterparts. Most Indigenous LGBTQ adults reported experiencing everyday forms of discrimination, verbal abuse in the last year and 57% said they had been physically or sexually assaulted as an adult, the study states.

Attorney Rylee Sommers-Flanagan, who is representing the plaintiffs, said it was important to try to capture as many experiences of Montanans as possible, including the Two-Spirit community.

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