Trans representative, banned from House floor, sues Montana Speaker

Montana Representative Zooey Zephyr (D) (Screenshot/NBC News)

On April 18, Representative Zooey Zephyr (D), the first openly trans member of the Montana legislature, rose to speak on the House floor. Zephyr expressed her opposition to SB 99, which prohibits gender-affirming medical care for trans youth. According to Zephyr, the bill would have life-threatening consequences for trans Montanans. "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," Zephyr said. 

That was the last time Zephyr, who represents 11,000 Montanans, was permitted to speak. Today, she is banned from even entering the House chamber. 

Zephyr's comments were provocative, but have considerable support in the medical community. The American Academy of Pediatrics supports "providing youth with access to comprehensive gender-affirming and developmentally appropriate health care." Banning such care poses "serious mental health risks to young people." 

Immediately after Zephyr's April 18 remarks, the Montana Freedom Caucus — a group of far-right Republicans — demanded Zephyr be censured. On April 19, Speaker Matt Regier (R) asked that Zephyr apologize for her remarks. Zephyr declined. Later that 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." On April 20, when Zephyr attempted to speak on HB 458, a bill that would define "sex" exclusively on reproductive systems, Regier refused to recognize her. 

In the days that followed, Regier and other Republican leaders refused to recognize Zephyr during legislative debates. On April 24, Regier put his decision to prohibit Zephyr from speaking to a vote. The Montana House approved the resolution muzzling Zephyr, 63-24.

The same day, "a rally organized by Montana citizens, including some of Representative Zephyr’s constituents from House District 100, came to the State Capitol." The group entered the House gallery and chanted, "let her speak." Zephyr "rose from her seat and held her microphone over her head in an effort to demonstrate that the voices of her constituents were being silenced." Zephyr was silent and her microphone was turned off, so her actions had no practical impact on the noise level. 

On April 26, House Majority Leader Sue Vinton (R) introduced a resolution to censure Zephyr. The resolution stated that Zephyr "violated the rules, collective rights, safety, dignity, integrity and decorum of the House of Representatives on the Floor of the House on April 24, 2023." It stated that she "will no longer be admitted to this Floor, House anteroom, or House gallery." Zephyr could continue to "vote remotely." The resolution passed 68-32. 

“We’ve seen the Republican Party move farther and farther not only into ideological extremism but also anti-democratic extremism,” Zephyr told The Nation, “and they are willing to forego the first principles of our country to achieve extreme ideological goals.”

On Monday, Zephyr sued Regier arguing that his actions violated her rights and the rights of her constituents, as articulated in the Montana Constitution.

Zephyr's case against the House Speaker 

Article II, Section 7 of the Montana Constitution states: "No law shall be passed impairing the freedom of speech or expression. Every person shall be free to speak or publish whatever he will on any subject, being responsible for all abuse of that liberty." 

Zephyr's lawsuit argues that Regier violated that provision because the decision to censure Zephyr was based "solely on the content of Representative Zephyr’s constitutionally protected speech" and was a form of "retaliation." 

While Reiger claims that Zephyr was censured for violating "decorum," the lawsuit argues that this is a pretext. Zephyr was prohibited from speaking prior to the protesters coming to the capitol on her behalf. And when the protesters did arrive, Zephyr remained silent. Her only action was to hold her inactive microphone aloft. 

Zephyr's lawsuit also alleges that Regier violated her right to equal protection under the law, which is delineated in Article II, Section 4 of the Montana Constitution:

The dignity of the human being is inviolable. No person shall be denied the equal protection of the laws. Neither the state nor any person, firm, corporation, or institution shall discriminate against any person in the exercise of his civil or political rights on account of race, color, sex, culture, social origin or condition, or political or religious ideas.

According to the lawsuit, Zephyr was targeted "on the basis of her political alignment with transgender rights." The lawsuit notes that "Montana lawmakers have made colorful and controversial comments without facing similar calls for discipline." State Senator Dan Saloman (R), for example, opened an April 7, 2023 hearing by saying, "[i]f [debate] gets out of line, I will use the gavel to knock you down." And during the debate on HB 99, Representative Kerri Seekins-Crowe (R) said "she would rather risk having her own child commit suicide than allow her to have gender-affirming surgery."

During other protests in the House gallery, Representatives directly addressed protesters without facing repercussions. For example, "after abortion rights advocates gathered at the Capitol in June 2022," then-representative Mary Ann Dunwell (D) asked protesters, "Are we ready to take our fight into the halls and galleries and committee rooms of the state Capitol?" Dunwell faced no discipline. 

Finally, the lawsuit argues that by prohibiting Zephyr from participating in legislative debates, Reiger is violating the rights of Zephyr's constituents. Three of Zephyr's constituents joined her as plaintiffs. The lawsuit alleges Reiger's actions "deprives the Constituent Plaintiffs of their right to self-government under Article II Section 2 of the Montana Constitution, which guarantees that '[t]he people have the exclusive right of governing themselves as a free, sovereign, and independent state.'"