Montana trans legislator banned; courts won’t intervene 

The Montana State Capitol building.

There are twice as many people in Philadelphia as there are in the state of Montana, but Montana is three times the size of Pennsylvania. Which means every state legislator in Montana is representing a vast physical area and a constituency with a variety of needs. 

All of which makes the historic election of Zooey Zephyr, a 34 year old college administrator, all the more historic. Zephyr, the first openly trans person elected to the state legislature, won the primary against other opponents and then the general in the 2022 midterms against the Republican candidate in the deeply red state. Zephyr was sworn into office in January. A Democrat, she represents Missoula in the 100th district in the Montana House of Representatives.

Or, she did until she was banned from the legislative chamber last month.

During a floor debate on April 18, Zephyr said legislators voting for Senate Bill 99, which prohibits gender-affirming medical and surgical care for transgender minors, were doing harm to those children. The “Youth Health Protection Act” is long, detailed and far-reaching, and includes over 20 banned actions and prohibits insurance coverage or reimbursement and holds any medical professional supporting and/or administering any of the care outlined in the law legally and civilly responsible.

In discussion of the bill, Zephyr said, “If you are forcing a trans child to go through puberty when they are trans, that is tantamount to torture, and this body should be ashamed.” 

Montana House Majority Leader Sue Vinton (R) said the legislature will “not be shamed by anyone in this chamber. We are better than that.”

Zephyr responded, “The only thing I will say is if you vote ‘yes’ on this bill and ‘yes’ on these amendments, I hope the next time there’s an invocation when you bow your heads in prayer, you see the blood on your hands.”

The chamber erupted. The Montana Freedom Caucus, a coalition of state House and Senate Republicans, called for the immediate censure of Zephyr. On April 18 the Freedom Caucus issued a statement, which it posted on Twitter and which misgenders Zephyr, noting, “Our Caucus is calling for the immediate censure of transgender Rep. Zooey Zephyr after his threatening and deeply concerning comments on the House floor earlier today.”

The statement includes a video link to the exchange between Zephyr and Vinton. It also states that Zephyr “attempted to shame members of the legislature” by using “inappropriate and uncalled-for language” during the floor debate.

The statement then links Zephyr’s comments to a mass shooting, saying, “This kind of hateful rhetoric from an elected official is exactly why tragedies such as the Covenant Christian School shooting in Nashville occurred,” referring to the mass shooting in March by shooter Audrey Hale in which three school staff and three 9-year-old students were killed. Some have claimed Hale was a trans man, but there has been no definitive determination of that. 

In a statement April 19, Zephyr said, “It is disheartening that the Montana Freedom Caucus would stoop so low as to misgender me in their letter, further demonstrating their disregard for the dignity and humanity of transgender individuals. Their call for ‘civility and respect’ is hypocritical given their actions.”

House Minority Leader Kim Abbott said in a statement, “The language used by the so-called Freedom Caucus, including the intentional and repeated misgendering of Rep. Zephyr, is blatantly disrespectful and the farthest thing imaginable from the ‘commitment to civil discourse’ that these letter writers demand.” 

Abbott said, “I find it incredibly ironic that these legislators are making demands of others that they refuse to abide by themselves.”

Republican Rep. Kerri Seekins-Crowe said her trans daughter was “suicidal for 3yrs,” and “I was not going to give in to her emotional manipulation” and get her gender-affirming care. 

Seekins-Crowe said she was “on the floor praying” for her child to not be trans. “People asked if I would do anything for my child [to make her not be suicidal] and the answer is no.”

On May 2, Montana District Court Judge Mike Menahan rejected Zephyr’s request for a temporary restraining order and preliminary injunction.

“Plaintiffs’ requested relief would require this Court to interfere with legislative authority in a manner that exceeds this Court’s authority,” the decision said. “Plaintiffs also seek injunctive relief which far outpaces the facts at issue here.”

Menahan cited the separation of powers between the judicial and the legislative branches in denying the request.

“The Montana Constitution explicitly grants each house of the Montana legislature the authority to ‘expel or punish a member for good cause,’” he wrote in the order, noting that “Because the constitution explicitly reserves this power for the Legislature, the Court’s powers are conversely limited.”

Attorneys for the state filed their own motion that the court refuse Zephyr’s emergency request that she be allowed to return to the chamber. The state argued it would be a violation of the separation of powers between the legislative and judicial branches. 

The attorneys for the state also argued Zephyr was “expelled from the chamber for good cause.”

Writing to the court they said, “One legislator cannot be allowed to halt the ability of the other 99 to engage in civil, orderly, debate concerning issues affecting Montana.” 

The ACLU is reviewing the case. Alex Rate, legal director of the ACLU of Montana, said all options are on the table, including an appeal to the Montana Supreme Court, even if relief would not immediately help Zephyr’s situation.

Montana Attorney General, Austin Knudsen, a Republican, celebrated the decision May 2 in a statement. Knudsen said, “This lawsuit was nothing more than 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.”

Montana’s GOP Gov. Greg Gianforte signed on April 28 the bill that banned gender-affirming care for minors in the state. The Montana legislature has already passed a bill saying it’s not illegal discrimination for a school student to misgender or deadname a fellow student, “unless it rises to the level of bullying.” The legislature also is moving another bill to put a binary definition of male and female into state code, including defining men as producing sperm and women as producing ova.

A month before Zephyr was censured, Oklahoma Republicans voted to censure Democratic Rep. Mauree Turner. Turner is the first publicly non-binary U.S. state lawmaker and the first Muslim member of the Oklahoma legislature. Turner allowed an individual who had been protesting legislation to ban gender-affirming health care to use their office following an arrest. 

Turner has fought the bill that would ban gender-affirming care for youth and effectively eliminate it for adults in the state. It is one of 15 bills targeting transgender health care that have been brought in the Oklahoma state legislature so far this year. 

Zephyr vowed to continue the fight, saying on CNN after the judge’s ruling Tuesday night, “I’m exploring every avenue available to make sure my constituents, the people who sent me here, have the representation that they have a right to.” 

“The speaker and the Republican supermajority took away my ability to represent my constituents and, in doing so, took away their right to representation,” Zephyr told CNN’s Erica Hill.

In a long video interview with TIME that is also transcribed to parallel the video, Zephyr said, “My censure was an attack on democracy.”

She said, “Tennessee Reps. Justin Jones, Justin Pearson, and Gloria Johnson connected with me over the last week to speak about our experience of standing up in defense of our communities and how to prepare for the next moment.”

Zephyr noted, “The main thing I took away is something Rep. Jones has said many times: ‘When they come for one of us, they come for all of us.’”