Attorneys for the state of Montana on Tuesday asked a judge to reject transgender Rep. Zooey Zephyr 's attempt to return to the House floor, after she was silenced and then banished for admonishing Republican lawmakers and encouraging a raucous statehouse protest.
Lawyers working under Attorney General Austin Knudsen cautioned that any intervention by the courts on Zephyr's behalf would be a blatant violation of the separation of powers. They wrote in a court filing that the Montana House of Representatives retains “exclusive constitutional authority" to discipline its own members.
Attorneys for Zephyr and several of her Missoula constituents on Monday filed court papers seeking an emergency order allowing her to return to the House floor for the final days of the 2023 legislative session.
Zephyr and fellow Democrats have denounced her exclusion from floor debates as an assault on free speech that's intended to silence her criticism of new restrictions on gender-affirming care for minors.
But lawyers for the state said the censure of Zephyr by her Republican colleagues was “for good cause" following the April 24 demonstration by her supporters.
“One legislator cannot be allowed to halt the ability of the other 99 to engage in civil, orderly, debate concerning issues affecting Montana,” the state's lawyers wrote.
GOP leaders under pressure from hard-line conservatives initially silenced Zephyr from participating in floor debates and demanded she apologize almost two weeks ago, after she said those who supported a ban on gender-affirming care for youths would have “blood” on their hands.
On April 24, Zephyr raised a microphone in defiance on the House floor as protesters in the gallery demanded she be allowed to speak and refused orders to leave. Seven people were arrested on trespassing charges and two days later lawmakers voted along party lines to oust Zephyr from the floor and gallery for the remainder of the session.
She's since been working from a bench in a hallway and, when that's been occupied, at a statehouse snack bar.
The actions taken against Zephyr have propelled her into political prominence and made her part of broader conversations about the muffling of dissent in statehouses. But in Montana, Republicans hope to capitalize on her high profile by painting Democrats as a party of extremists headed into the next election.
The lawsuit seeking to reverse her punishment was filed by attorneys working for the Montana ACLU. It names House Speaker Matt Regier and Sergeant-at-Arms Brad Murfitt as defendants.
“The House of course is free to censure one of its own members and it’s of course free to adopt rules,” said Montana ACLU legal director Alex Rate. “But it is the province of the court to ensure those rules abide by the Constitution.”
