Judge rejects Zooey Zephyr bid to return to Montana House

HELENA, Mont. — Rep. Zooey Zephyr, the transgender Montana lawmaker silenced after telling Republicans they would have blood on their hands for opposing gender-affirming health care for kids, cannot return to the statehouse House floor and participate in debate, a judge ruled Tuesday.

District Court Judge Mike Menahan said it was outside his authority to overrule the Legislature and return Zephyr to the House floor, citing the importance of preserving the Constitution’s separation of powers between the legislative, executive and judicial branches.

“Plaintiffs’ requested relief would require this Court to interfere with legislative authority in a manner that exceeds this Court’s authority,” Menahan wrote in his five-page ruling.

Attorneys for the state of Montana had asked the judge to reject an emergency motion from Zephyr’s lawyers challenging her ouster.

The first-term lawmaker was silenced two weeks ago for admonishing Republican lawmakers, then banished from the floor last week for encouraging a raucous statehouse protest.

Zephyr told The Associated Press that Menahan’s decision was “entirely wrong.”

“It’s a really sad day for the country when the majority party can silence representation from the minority party whenever they take issue,” Zephyr said.

Lawyers working under Attorney General Austin Knudsen had 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.

Knudsen, a Republican, issued a statement through a spokesperson saying the lawsuit was an attempt by outside groups to interfere with Montana’s lawmaking process.

”Today’s decision is a win for the rule of law and the separation of powers enshrined in our Constitution,” he said.

An attorney for Zephyr, Alex Rate, said an appeal was being considered. But the 2023 legislative session is nearing its end, so a ruling in coming days would be of little immediate consequence.

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 punishment against Zephyr was through the end of the 2023 session, which was expected to wrap up Tuesday night. Since Montana’s Legislature convenes every two years, Zephy would have to be re-elected in 2024 before she could return to the House floor in two years.

The lawsuit seeking to reverse her punishment was filed by attorneys working for the Montana ACLU. It named House Speaker Matt Regier and Sergeant-at-Arms Brad Murfitt as defendants.