Zooey Zephyr sues over censure for opposing anti-trans law

Rep. Zooey Zephyr, D-Missoula, speaks during a meeting of the House Judiciary Committee in the Montana State Capitol in Helena, Mont. on Monday, May 1, 2023. Rep. 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. (Thom Bridge/Independent Record via AP)

Montana’s first openly transgender lawmaker has sued the state over the Republican-dominated legislature’s decision to ban her from the House floor.

Zooey Zephyr, who has been barred from physically entering the House chamber since being censured on Thursday, has sued over what lawyers describe as an “unconstitutional Censure and retaliatory silencing.” Zephyr, who took office after being elected in November 2022, sparked controversy when she criticized those of her colleagues who supported a since-passed bill that prohibits gender-affirming care for transgender youth.

“If you vote yes on this bill and yes on these amendments, I hope the next time there’s an invocation, when you bow your heads in prayer, you see the blood on your hands,” she said during debate on the bill on April 18. The “Montana Freedom Caucus,” which the lawsuit describes as a group of “several ultraconservative Representatives” issued a statement demanding Zephyr be censured, noting that the group has “deliberately misgendered” Zephyr in all external communications.

The next day, House Speaker Matt Regier, a Republican, asked Zephyr to apologize; she didn’t. That same day, Regier told Zephyr that “her comments had broken decorum, and that he would no longer recognize her to speak until he believed she could ‘maintain decorum’ going forward,” the lawsuit says. In accordance with his word, Regier refused to recognize her the next day, on April 20, when she asked to speak on a different bill that would official define “sex” as based only on one’s reproductive system — essentially denying the legal recognition of transgender and intersex people.

Four days later, on April 24, the House voted to block Zephyr from speaking. That same day, when protestors inside the chamber chanted “Let her speak,” she stood up and raised her microphone, which had been turned off. Around six of those protestors were arrested.

On April 26, the House, led by Republican Majority Leader Sue Vinton, proposed that Zephyr be censured over the protest. The motion passed 68-32. The next day, according to the lawsuit, her key card access to the Capitol building was deactivated and she was told that she was not allowed to work on a public bench outside the House anteroom.

The lawsuit says that Zephyr was censured for “silently raising a silenced microphone above her head” and failing to “calm” the protestors while other legislators have faced no consequences for significantly more confrontational behavior.

“For example, during the coronavirus pandemic, individuals brandished guns during their protests,” the lawsuit says. “Despite this, no legislator was disciplined in those situations for the behavior of those with whom they are politically aligned, for acknowledging their views, or for failing to ‘calm’ them.”

The lawsuit, filed by the ACLU on behalf of Zephyr and four constituents, says that the measure not only deprives Zephyr of her “right to freely engage with the legislative process,” as she was elected to do, it also denies representation to Zephyr’s constituents.

“Since the motion was passed, Representative Zephyr has been effectively removed from the legislative process, and the voices of her 11,000 constituents have been collectively silenced,” the lawsuit says.

The lawsuit alleges that the retaliation is based not only Zephyr’s actions, but her “who she is”: the first open transgender woman elected to the Montana legislature and a member of a community that has been targeted by the current slate of state lawmakers in office.

“Montana’s 68th Legislative Session is blighted with attacks on vulnerable individuals and communities in Montana,” the lawsuit says. “Those attacks are perhaps felt most acutely by members of the 2S-LGBTQIA+ community. The Legislature has passed numerous bills attacking and marginalizing transgender and nonbinary Montanans. The Censure of Representative Zephyr reflects the culmination of those attacks.”

The complaint also notes that Zephyr’s exclusion from the House comes at a crucial time in the legislative session for Montanans.

“In the waning days of the legislative session the Montana House of Representatives is poised to consider critical legislation,” the complaint says. “House Bill 2 — the State’s budget bill, touching all corners of government and affecting every citizen in the State – will be debated on the floor of the House this week. Representative Zephyr’s Censure prevents her voice – and by extension the voices of her 11,000 constituents — from being heard on perhaps the most consequential bill the Legislature will consider this session.”

Zephyr, 34, was voted into office in November 2022.

The lawsuit names the state of Montana, Regier, and Sergeant at Arms Bradley Murfitt, who is responsible for enforcing the censure, as defendants.

“I’m suing,” Zephyr announced on Twitter Monday. “The recent actions violate my 1st amendment rights, as well as the rights of my 11,000 constituents to representation. Montana’s State House is the people’s House, not Speaker Regier’s, and I’m determined to defend the right of the people to have their voices heard.”

Montana Gov. Greg Gianforte, a Republican, signed the anti-transgender legislation into law on Friday. The governor’s son, who is nonbinary, reportedly urged him to reject the bill.

Zephyr seeks a declaration from the judge that the censure violated Zephyr’s First Amendment and Equal Protection rights and an injunction prohibiting the censure from being enforced against her, as well as a restoration of all her legislative privileges.

You can read the lawsuit, via the ACLU, here.

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Zooey Zephyr sues over censure for opposing anti-trans law

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