UPDATE: On Tuesday, May 2, a Montana Judge denied the plaintiffs’ request for a temporary restraining order. This means that Zephyr will remain censured as litigation continues.
WASHINGTON, D.C. — On Monday, May 1, Montana Rep. Zooey Zephyr (D), the state’s first openly transgender lawmaker and four of her constituents from Missoula County, Montana filed a lawsuit challenging her censure by the Republican-controlled Montana Legislature. This legal action comes after the Montana House voted 68-32 to censure Zephyr after her comments during a debate on legislation to ban gender-affirming care for minors in which she argued that the proposed legislation would have life-threatening consequences for transgender Montanans. The lawsuit asks for emergency relief against the defendants — the state of Montana, Speaker of the Montana House of Representatives Rep. Matt Reiger (R) and Sergeant at Arms for the Montana House of Representatives Bradley Murfitt — “arising out of their unconstitutional Censure and retaliatory silencing” of Zephyr. As a result of the censure, the plaintiffs argue that the defendants “deprived [Zephyr’s] 11,000 constituents of the right to full representation in their government.”
As a result of the censure, Zephyr will be unable to speak on the floor for the remainder of the legislative session and she will only be able to cast votes remotely. The lawsuit alleges that the censure of Zephyr, who “engaged in Constitutionally protected speech,” violates Article II, Section 7 of the Montana Constitution, which guarantees the right to freedom of speech, expression and press. The complaint also alleges that the censure violates Article II Section 4 of the Montana Constitution which ensures the right to equal protection under the law. The complaint points out that other “Montana lawmakers have made colorful and controversial comments without facing similar calls for discipline.” In addition, the constituents in the lawsuit allege that “as a result of the unconstitutional Censure, the Representative of District 100 has been silenced, depriving her constituents of a voice in floor debates, committee discussions, and lobbying of other House representatives since the Censure.”
Unfortunately, the silencing of Zephyr is part of a growing anti-democratic trend wherein Republican-controlled legislatures have silenced members of the opposition party when Democratic members express views contrary to those of their Republican colleagues. On April 6, for instance, the Tennessee House voted to expel Reps. Justin Jones and Justin Pearson, two young Black, Democratic lawmakers who represent parts of Nashville and Memphis, respectively. Jones and Pearson allegedly broke decorum rules when they joined protestors at the state capitol building calling for gun safety legislation after a recent mass shooting at a Nashville elementary school. In Montana, the situation is eerily similar. As the complaint summarizes, this censure is not about decorum, but rather about Zephyr standing up for her 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.”
Both Jones and Pearson have since been reappointed to their positions by local councils, but the action briefly stripped democratically elected officials of their authority and Tennessee residents of their representation. These brazen moves by Republican supermajorities in deep red states bar Democratic lawmakers from advocating for differing opinions. As Zephyr notes, such an action is a “disturbing affront to democracy.”