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Montana state Rep. Zooey Zephyr’s bid to return to the House floor was quashed by a judge on May 2, meaning the lawmaker will continue to cast votes remotely for the remainder of the legislative session.
District Court Judge Mike Menahan said in a five-page ruling (pdf) that the court lacked the authority to overrule the GOP-led House’s decision last week to censure Zephyr, a biological male who identifies as a bisexual trans woman, from the House floor and debates.
“Based on the relief requested, the Court finds Plaintiffs are unlikely to succeed on the merits and therefore cannot satisfy the first requirement,” Judge Menahan wrote in his ruling, citing the separation of powers between the judicial and the legislative, 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. Plaintiffs also seek injunctive relief which far outpaces the facts at issue here,” the judge wrote.
The Montana Constitution explicitly grants each house of the Montana legislature the authority to ‘expel or punish a member for good cause,’” he wrote, noting that “Because the constitution explicitly reserves this power for the Legislature, the Court’s powers are conversely limited.”
The ruling means that Zephyr, 34, will continue voting on various bills remotely and will remain barred from the House floor and gallery for the rest of the legislative session, which ends later this week.
Montana lawmakers voted 68–32 on April 26 to ban Zephyr from voting on the House floor after the Democrat broke decorum during a debate over a bill banning transgender medical procedures for minors.
‘Blood on Your Hands’
During the debate, Zephyr told fellow lawmakers, “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.”
Zephyr later clarified that the lawmaker was referring to the “real consequences” the House votes could have on the LGBT community.
Speaking to House lawmakers ahead of the disciplinary vote, Zephyr said: “When I rose up and said ‘there is blood on your hands,’ I was not being hyperbolic. I was speaking to the real consequences of the votes that we, as legislators, take in this body. And when the speaker asks me to apologize on behalf of decorum, what he is really asking me to do is be silent when my community is facing bills that get us killed.”
However, Zephyr’s remarks were condemned by the Montana Freedom Caucus, a group of conservative lawmakers, who called Zephyr’s remarks “hateful rhetoric,” and demanded an apology.
Zephyr refused to apologize for the comments and was initially censured before being removed days later after a protest broke out in the House gallery among the lawmakers’ supporters, some of whom were reportedly arrested.
Republican lawmakers argued that protests had put their safety at risk.
Montana Gov. Greg Gianforte, a Republican, ultimately signed the bill into law last Friday to ban gender-altering procedures for minors in the state.
Zephyr, ACLU Files Lawsuit
Zephyr has since teamed up with the American Civil Liberties Union (ACLU) to sue the Montana Legislature over the lawmaker’s censorship, arguing the recent actions by Montana lawmakers violate Zephyr’s First Amendment rights and the rights of the 11,000 constituents Zephyr represents.
However, lawyers for the state argued that Zephyr’s censoring was “for good cause” following the April 24 demonstration by supporters and asked the judge not to allow the lawmaker back in the statehouse.
“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 in court filings.
On Twitter shortly after Judge Menahan’s ruling, Zephyr said the decision “undermines the democratic principles our country was founded on.”
“I vow to continue standing for my constituents & community to fight for our democratic institutions. If we can’t get justice in the courts, we will get it in the ballot box,” Zephyr wrote.
An attorney for Zephyr, Alex Rate, told The Associated Press that an appeal was being considered.
Meanwhile, Montana Attorney General Austin Knudsen said the judge’s decision was a win.
“This lawsuit was nothing more than an attempt by outside groups to interfere with Montana’s lawmaking process,” Knudsen said in a statement to the publication. “Today’s decision is a win for the rule of law and the separation of powers enshrined in our Constitution.”