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 ‘violates’ their spiritual and cultural beliefs.
The law, Senate Bill 458, defines ‘male’ and ‘female’ based on the presence of XY or XX chromosomes and reproductive systems. The legislation, which took effect in October, inserts these definitions of male and female into several parts of the state’s legal code, affecting driver’s licences, vital records and the state’s anti-discrimination law.
In October, attorneys representing the nonprofit Montana Two Spirit Society, along with a group of transgender, intersex and non-binary Montana residents, filed a lawsuit in Missoula County District Court challenging the law.
They argue that the state’s definitions of gender “improperly categorise many Montanans, exclude others from legal recognition altogether, and deprive them of the benefits and protections of myriad state laws”. The lawsuit also argues that the law violates Montana’s laws on individual dignity, equal protection, privacy and free speech.
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 gender restrictions go against indigenous traditions and cultures.
“We don’t just subscribe to biological definitions. We recognise that there are different genders, and our cultures have always known that there are more than two genders. In some indigenous cultures, there may be as many as four to six different genders,” said Herrera, a 61-year-old Two-Spirit and adopted Blackfeet.
The lawsuit names Montana’s Republican governor, Greg Gianforte, and Montana’s attorney general, Austin Knudsen, as defendants. A spokesman for the governor told CNN that 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 a response to the lawsuit by December 14.
Two-Spirit is an umbrella term that emerged in the 1990s to refer to people in many indigenous and Native American cultures who historically had both male and female spirits and who filled special social and spiritual roles. Some Native Americans who are lesbian, gay, bisexual, transgender, intersex or gender non-conforming also use the term to identify themselves.
Before colonisation, Two-Spirit people had a role of honour in healing and ceremonies, but as Indigenous people were forced to assimilate, this part of their tradition was lost.
“For people who were seen as Two-Spirit, men dressing as women or women dressing as men and being warriors went against the teachings of the church and so they were seen as an abomination or a deviant. In some of the stories, our Two-Spirit people were actually murdered and killed, while in others they were forced to conform to certain 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 organisation supports efforts to fight back against the state’s new gender definitions.
“We’ve already been traumatised by so many things that the government has done to us, and so we just thought it was time – we need to step up and take back what’s rightfully ours and not let the government take that away from us,” Barrios said.
Barrios added that SB 458 and similar legislation could create more challenges for Two-Spirit youth.