News68th Session


Banning of Zephyr has little precedent in Montana, experts say

Zooey Zephyr
Posted at 8:05 PM, Apr 26, 2023
and last updated 2023-04-27 16:06:27-04

BILLINGS – The banning of Democratic Missoula Rep. Zooey Zephyr from the House floor has little precedent in modern Montana political history, according to political experts.

“I’ve seen many instances where someone is not recognized on the floor, or the chair of the body refuses to recognize someone for various reasons. It happens on occasion. It's not uncommon. People have been forced to apologize in the past for saying something on the floor that people regard as offensive, they’ve breached decorum. This situation is a little different,” said Mike Dennison, a former MTN News political reporter who covered the Montana Legislature for 30 years.

It’s different because Zephyr, Montana's first transgender lawmaker, is refusing to apologize for her statement last week on the House during debate over bills restricting healthcare for transgender youth: “...I hope the next time there is an invocation when you bow your head in prayer, you see the blood on your hands,” she said.
The Montana House of Representatives voted 68-32 Wednesday to discipline Zephyr on the House floor. She is banned from the House floor, the House anteroom, and the House gallery for the remainder of the session. She can still vote remotely.

The action came two days after a protest filled the House gallery and temporarily shut down the session. Seven people were arrested.

ACLU of Montana Legal Director Alex Rate says the group is considering the situation in terms of public policy and possible violations of free speech.

“In either event, I think there is sort of two ways to look at that. One is from a public policy perspective, which is to say, is this good, is the way we want to see our government operate. Meaning, that if there is an unpopular viewpoint that we are leaving that person out or forcibly removing them, and is this good for the people of Montana, who elected an official, in Representative Zephyr, to represent them in the body,” said Rate.

The ACLU of Montana released the below statement following Wednesday's decision:

"The American Civil Liberties Union the ACLU of Montana roundly condemned a vote by the Montana House of Representatives baselessly prolonging the de facto censure of Montana State Representative Zooey Zephyr (HD-100) and denying her constituents adequate representation in state government.

The vote unfairly targeted Rep. Zephyr for voicing her objection to proposed House bills aimed at restricting the rights of transgender youth and their families to access gender-affirming health care. The ACLU, the ACLU of Montana, and Lambda Legal have promised to challenge any such ban in court should it become law.

“This is an anti-democratic effort by House leadership to censor one of their own colleagues for using her voice and platform to represent her constituents,” said Keegan Medrano, Policy Director of the ACLU of Montana. “Rep. Zephyr is a duly-elected member of the legislature and entitled to represent the people of their district. In voting to take away her microphone, the House is attempting to silence Montanans and trans people from speaking to the harm of all these bills. This is another shameful day in our state’s history and we’re determined to protect every transgender Montanans from these vile, bigoted attacks on their dignity and equality.”

"There is a name for when elected officials attack and silence other elected officials they don't agree with to prevent them from fulfilling their duties - it's called authoritarianism," said Deirdre Schifeling, National Political Director at the ACLU. "Freedom of speech is essential to our democracy. Trans people are an essential part of our democracy — both as voters and lawmakers — and must be defended."

The House creates its own rules, but they must be enacted and enforced in line with the US and Montana constitutions.

“Those constitutions contain explicit protects for free speech that extend to legislative debate, even when that debate involves unpopular perspectives,” Rate said.

This move has no modern historical precedence in Montana. Two representatives were recently expelled from the Legislature in Tennessee, but they were reinstated through the appointment process to fill their vacant seats.

“There is legal recourse available through United States Supreme Court precedent to ask a judge to overrule the actions undertaken by the Montana house and ensure that she is allowed to speak in an unfettered manner or be reinstated in her seat,” Rate said.

Rate is citing the 1966 Bond v. Floyd decision.

SPECIAL REPORT: Montana House votes to ban transgender Representative from House floor