Two-Spirit People...

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

Buffalo Barbie, 2019's Miss Montana Two-Spirit

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.

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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.”

Miss Montana Two-Spirit Land Lakes, of the Chickasaw Tribe, right, attends the 3rd Annual Two-Spirit Powwow at South Mountain Community College in Phoenix on April 15, 2023.