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Zooey Zephyr and the ACLU were right to sue over her silencing

But the lawsuit filed against the Montana speaker of the House seems unlikely to convince a judge to overturn her censure.
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Republican lawmakers in Montana probably thought they were pretty slick when crafting their punishment against state Rep. Zooey Zephyr last week. In a better world, hers would have been one of the most critical voices in the state House’s debate of SB 99, a bill that bars gender-affirming health care for transgender minors. As the first trans Montanan elected to that legislative body, she knows better than any of the other members the ways that the bill would harm the people it was targeting in the name of protecting them.

The Montana state House has bullied a minority member of the minority for trying to prevent a law that would hurt her community.

Instead, Zephyr was silenced during deliberations over the bill, which was signed into law last week. Her offense? Saying that the bill’s backers would have “blood on their hands” — a reference to the documented link between access to gender-affirming care and lower suicide rates — and showing support for protesters who demanded she be allowed to speak. For the crime of accurately framing the bill’s terrible consequences, the House passed a resolution to keep Zephyr from debating any bill for the rest of the legislative session. An emergency lawsuit filed Monday on behalf of her and her constituents hopes to overturn that decision. But though I agree with the lawsuit itself and the points it makes about the deliberate targeting of Zephyr as a trans woman, I can’t say I’m hopeful that a judge will concur.

Crucially, the resolution punishing Zephyr determined that she “will no longer be admitted to this Floor, House anteroom, or House gallery” for the remainder of the session. That might seem like a long time, but it isn’t — and that’s part of why Zephyr’s punishment is so subtly cruel. Montana’s part-time Legislature works for only 90 days in odd-numbered years. The current session is scheduled to end this Friday, May 5, meaning that even though Zephyr’s term doesn’t expire until next year, being blocked from taking part in the work that’s being done right now means that she will be unable to help shape or offer her constituents’ views on the final bills of the session, including the state budget.

It was no mark of altruism that Zephyr is still permitted to vote on bills. Thanks to rules still in place as part of the Covid response, members of the Montana House are allowed to vote remotely with their caucus leader’s permission; blocking this ability would have been an even clearer case of disenfranchisement of her voters.

The same goes for expelling her altogether. After all, they’d likely seen the backlash against the move to expel the “Tennessee Three” last month and wanted to avoid a similar media firestorm. They also likely knew that under the Montana state Constitution any vacancy triggers a special election — an expensive and cumbersome process that would keep the spotlight on the whole affair, and could easily have ended with Zephyr being re-elected. Instead, Montana GOP leaders chose to keep her in office but metaphorically gagged.

And because the campaign to single her out relied on anti-trans sentiment, they likely felt they had strong odds to get away with it in the conservative state. That confidence is reflected in the vote to censure Zephyr, which required a two-thirds majority to pass. It did so easily along party lines, as the GOP has held a supermajority in the state House since 2021. Given how Republicans have raced to embrace anti-trans sentiment over the last several years, there was a clear belief that attacking Zephyr would only burnish their own credibility among their constituents.

That brings us to the lawsuit that the ACLU of Montana and others filed on behalf of Zephyr and four of her constituents. It asks for a temporary injunction against the censure while the case plays out, allowing Zephyr to take part in the final days of the session. The lawsuit’s points are well-made, especially that her supposed “breach of decorum” was milder than other actions from fellow legislators who didn’t receive any punishment at all.

The argument is that in silencing Zephyr, the House infringed upon her right to free speech under the Montana Constitution and discriminated “on the basis of her political alignment with transgender rights.” It further argues that the House violated her constituents’ rights to equal protections under the law, to petition the government and self-governance. The latter of those claims may wind up being more compelling, as theirs is the most immediate harm that a court could rule on given the closing window for participation.

But the biggest potential problem I can see is something that has also played out at the federal level. Article I, Section 5 of the Constitution states that each house of Congress “may determine the Rules of its Proceedings.” Over the years, that clause has been invoked in numerous cases to find that the House and Senate’s processes and procedures are beyond the reach of the courts. Similarly in Montana, the state Constitution notes that each house “may expel or punish a member for good cause shown with the concurrence of two-thirds of all its members.”

The ACLU lawsuit counters that it’s clear from the capriciousness of the resolution against Zephyr that the House leadership was acting within the “color of the law” — technically allowed but acting against the spirit of the law and beyond the scope of its reach. That might be true, but I can see the state court washing its hands of the whole affair, dismissing the case as being beyond its reach.

If that is the result, it will be a bitter pill to swallow. The Montana state House has bullied a minority member of the minority for trying to prevent a law that would hurt her community. To block a legislation from precisely the work she should be performing is an assault against the form of government that the Republican Party derives its name from.