The American Civil Liberties Union has sued to overturn the Montana Legislature’s censure of Democratic state Rep. Zooey Zephyr, arguing that the transgender lawmaker’s free speech rights were violated based on gender identity.
“Representative Zephyr’s unconstitutional Censure and silencing are the result of not just what she said, but who she is,” said the lawsuit filed Monday on behalf of the legislator and four constituents. “Representative Zephyr is the first openly transgender woman elected to the Montana legislature.”
The 28-page complaint accused House Speaker Matt Regier and the Republican-led legislature of engaging in “retaliation against protected free speech” with the 68-32 vote Wednesday to censure the Democrat for breach of decorum during a raucous protest in the House gallery.
The Democrat raised her microphone on the House floor in support of protesters who loudly chanted, “Let her speak!” Seven people were arrested in the May 22 melee and charged with criminal trespass.
The lawsuit said the censure was intended “to punish Representative Zephyr not for ‘violating decorum’ but for being a vocal proponent of transgender rights amidst an onslaught of anti-transgender legislative activity.”
“In issuing and enforcing the Censure, Defendants discriminated against and treated Representative Zephyr differently than similarly-situated lawmakers,” said the complaint filed in state court.
SEE ALSO: Rebuke of transgender legislator spurs protests, arrests at Montana Legislature
Before the decorum vote, Mr. Regier had refused for three days to recognize Ms. Zephyr after she declared that supporters of a bill to ban gender-transition drugs and procedures for minor children had “blood on your hands.”
Senate Bill 99 passed and was signed into law Friday by Republican Gov. Greg Gianforte, making Montana the 17th state to block those under 18 from accessing puberty blockers, cross-sex hormones and gender-transition surgeries. The ACLU has pledged to challenge the law in court.
The censure prevents Ms. Zephyr from being admitted to the House floor, anteroom or gallery. The first-term legislator may continue to vote remotely until the session ends Friday.
“Freedom in this body involves obedience to all the rules of this body, including the rules of decorum,” Montana House Majority Leader Sue Vinton, who sponsored the censure resolution, said on the House floor last week.
Emily Flower, spokesperson for Montana Attorney General Austin Knudsen, called the complaint “performance litigation.”
“This is performance litigation — political activism masquerading as a lawsuit,” she said in an email. “The ACLU is trying to use the courts to interfere with the legislature as it carries out its constitutional duties on behalf of Montanans. Any relief granted by the court would be a gross violation of the separation of powers.”
Minority Leader Kim Abbott said during the Wednesday floor debate that she would vote against the censure motion even though she agreed it was lawful.
“You know what? I agree that you absolutely can do this by rule, by the constitution, by Mason’s [Manual of Legislative Procedure], but just because you can do it does not mean it’s the right choice,” Ms. Abbott said. “I think it’s the wrong choice.”
I’m suing.
— Rep. Zooey Zephyr (@ZoAndBehold) May 1, 2023
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. pic.twitter.com/eyDjgchWPQ
The filing argued that the “blood on your hands” expression has been made by officials elsewhere without consequences. For example, Texas Gov. Greg Abbott said that “Democrats will have blood on their hands for failing to step up and do their job” during the lengthy 2021 legislative walkout.
“In 2022, Alabama state Representative Merika Coleman said, ‘And I tell you, some of you are going to have blood on your hands because this piece of legislation passes,’” said the complaint. “Upon information and belief, no sitting legislator has faced discipline for using this phrase.”
Ms. Zephyr called the decorum vote “a disturbing and terrifying affront to democracy itself.”
“House leadership explicitly and directly targeted me and my district because I dared to give voice to the values and needs of transgender people like myself,” she said. “By doing so, they’ve denied me my own rights under the Constitution and, more importantly, the rights of my constituents to just representation in their own government.”
Montana Republican Party chairman Don Kaltschmidt cheered the legislature, saying it was well within its rights to “impose consequences on Democrat Representative Zooey Zephyr.”
“This radical legislator instigated a riot that ended in multiple arrests and endangered legislators and staff,” he said. “Our supermajority stood strong against leftwing intimidation. Revoking House Floor privileges from Representative Zephyr shows that Representative’s behavior is unacceptable and not tolerated in the Montana State Capitol.”
The lawsuit, which seeks both temporary restraining orders and permanent injunctions to restore the lawmaker’s status, was filed by the ACLU of Montana and the law firm of Beck, Amsden and Stalpes, and Mike Black in Montana First Judicial District Court in Helena.
• Valerie Richardson can be reached at vrichardson@washingtontimes.com.
Please read our comment policy before commenting.