Montana Rep. Zooey Zephyr sues over her removal from House floor
Updated May 1, 2023 at 7:42 PM ET
HELENA, Mont. — Montana state Rep. Zooey Zephyr asked a court Monday to allow for her return to the House floor after she was silenced and barred for chiding her Republican colleagues over legislation to restrict gender-affirming health care and for encouraging protesters.
Attorneys for the first-term lawmaker sued in state district court in Helena on behalf of Zephyr, a transgender Democrat who represents a liberal district in the college town of Missoula, and several constituents who the attorneys said were being denied their right to adequate representation.
Zephyr, whose comments in the Montana Legislature have made her a prominent figure in transgender rights and in conversations about the muffling of dissent in statehouses, said in a statement Monday that she and her constituents were targeted "because I dared to give voice to the values and needs of transgender people like myself."
The legal challenge against House Speaker Matt Regier and statehouse Sergeant-at-Arms Bradley Murfitt comes with just days left in the Legislature's biennial session.
A spokesperson for Montana Attorney General Austin Knudsen — a Republican whose office will defend the case — said the lawsuit was frivolous.
"This is performance litigation – political activism masquerading as a lawsuit," said Emily Flower, Knudsen's press secretary. She added that a court decision blocking the Legislature's censure of Zephyr would violate the separation of powers between branches of government.
Murfitt said he would not comment on the lawsuit, and Regier did not return telephone messages and an email seeking comment.
Residents of the Missoula area said in declarations filed as part of the lawsuit that they wanted Zephyr heard in the Legislature.
Anna Wong, who lives in Missoula County with her transgender child, supported Zephyr in the 2022 election with the expectation the lawmaker would "speak out against the onslaught of bills targeting transgender youth."
"Suicide amongst transgender youth is not imaginary," Wong said. "It is not a game and it is not a political foil. It is real. It is heartbreaking. And it is the responsibility of my representative to speak out against bills promoting it."
Zephyr's attorneys hoped to get a ruling as quickly as possible on their request for a temporary restraining order against Regier and Murfitt. One of the most important pieces of the Legislature's work, finalizing a budget for the next two years, is unfinished.
"Every minute matters," said Alex Rate, legal director of the Montana ACLU and one of Zephyr's attorneys. "Without Zephyr having her full rights and privileges restored, her 11,000 constituents are voiceless."
Democratic Minority Leader Kim Abbott appeared to concede that the removal of Zephyr was within the House's authority when she spoke on the House floor as the matter was considered last week. "You absolutely can do this, by rule, by the Constitution ... But just because you can do it does not make it the right choice," she said.
Abbott did not immediately respond to a request for comment.
Republicans achieved a supermajority in Montana during the 2022 election and now control two-thirds of the state House and Senate, in addition to the governor's office.
GOP leaders, under pressure from hard-line conservatives, silenced Zephyr from participating in floor debates and demanded she apologize two weeks ago, after she said those who supported a ban on gender-affirming care for youths would have blood on their hands. Days later, she raised her microphone in defiance as demonstrators in the House gallery angrily demanded she be allowed to speak, leading to seven arrests and Zephyr's banishment from the House floor.
Republicans moved to sideline Zephyr further by canceling some meetings of the two committees on which she serves and moving the bills they were to hear to other committees, Democrats said.
She spent the first day of her exile last week battling to use a bench in a statehouse hallway. Her key card to access Capitol entrances, bathrooms and party workspaces was deactivated, according to the lawsuit.
Zephyr spoke briefly during a House Judiciary Committee meeting Monday morning. The full House — minus Zephyr — reconvened in the afternoon. Zephyr cast votes from a statehouse snack bar because several people occupied the bench.
Her situation echoed the ouster this year of two Tennessee lawmakers from that state's legislature for a protest over gun policy.
In retaliating against Zephyr, Montana Republicans accused her of crossing a line that is faint at best in political debate. It's not uncommon for legislators wading into heated issues like abortion or gun rights to be scolded about "blood on your hands" by protesters or even fellow representatives.
Attorneys for Zephyr noted previous legal disputes in which courts sided with politicians who made controversial comments, including a case that involved a conservative Oregon lawmaker's veiled threats against the state police.
The 9th U.S. Circuit Court of Appeals last year ruled that a requirement for Oregon Sen. Brian Boquist to give 12 hours' notice before coming to the state Capitol violated his freedom of speech as an elected official and came as retaliation for his words.
The attorneys also cited a 1966 U.S. Supreme Court case in which justices sided against Georgia lawmakers who tried to exclude a newly elected lawmaker — Julian Bond, who later became chair of the NAACP — because he endorsed criticism of the Vietnam War.
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