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Citing decorum, Republicans shut down transgender lawmaker; 'Jungle primary' bill fails

Republicans try to silence transgender lawmaker Zooey Zephyr. Anti-trans bills are on their way to becoming law. Lawmakers table a bill to create a one-time "jungle primary" in next year's Senate race. The defeat of that bill may have political fallout for Senator Steve Daines.

Capitol Talk is MTPR's weekly legislative news and analysis program. MTPR's Sally Mauk is joined by Lee Newspapers State Bureau Chief Holly Michels and UM Political Science Professor and Mansfield Center Fellow Rob Saldin.

Sally Mauk Holly, this has been an acrimonious week in the Legislature with some members calling for the censure of transgender Democrat Zooey Zephyr for remarks she made about Senate Bill 458, a bill barring gender affirming care for minors. And then that was followed a couple of days later by House Speaker Matt Regier barring Zephyr from speaking about another bill, Senate Bill 99, defining sex as based on someone's reproductive system. Before we talk about the fallout, let's listen to the comments Zephyr made about the bill to ban gender affirming care.

Zooey Zephyr 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. And if you vote yes on this amendment and yes on this bill, then ...

House chairman Representative Zephyr would you like to close?

Zooey Zephyr Sorry, I'm yielding to the majority leader.

House chairman Majority leader Vinton.

Sue Vinton Thank you, Mr. Chairman. I speak on behalf of our caucus. We will not be shamed by anyone in this chamber. We are better than that.

House chairman Representative Zephyr.

Zooey Zephyr Then 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.

Sally Mauk And Holly, it's that "blood on your hands" comment that has sparked the uproar.

Missoula Rep. Zooey Zephyr, one of Montana’s first transgender lawmakers, is blocked from speaking on the House floor after she condemned Republicans for advancing anti LGBTQ legislation.

Holly Michels Yeah, that was pretty intense debate. And like you said, we heard House Majority Leader Sue Vinton, rise, actually two times, on the floor in objection to what Zephyr was saying. But that was it for the day that these initial comments were made.

Much later that evening in a press release, we saw the Freedom Caucus, which is 21 members who are on the pretty far right side of the Republican Party, they sent out a release calling for Zephyr's censure. You know, the next day in the Capitol, there was a lot of discussions, a lot of buzz all around the building about this among Republicans outside that caucus, talking about some sort of action against Zephyr, but we didn't actually see anything come up the day after the comments were initially made. It was actually the day after that where we saw this all boil over.

What happened then is the House heard a bill that would define sex as male and female in state law and a base those definitions mostly off of reproductive organs. We've heard from a lot of opponents who don't like this bill. They say definitions in it would not recognize trans Montanans in state law. So as debate on this bill is happening — lawmakers all have buttons on their desk they punch in to indicate they want to speak on a bill — when Representative Zephyr punched in, Speaker of the House Matt Regier, who was running the floor session, did not acknowledge her. So debate ended on that bill, lawmakers voted to advance it along.

Then we saw House Minority Leader Kim Abbott, who's a Democrat from Helena, stand up and ask the speaker, again, Matt Regier, why Zephyr wasn't acknowledged. Regier said that it's his job to maintain decorum, and he didn't think that he would do that if he called on her based on her prior comments from a couple of days earlier. Then Abbott made a formal objection to Regier's decision. And that triggered a meeting of the House Rules Committee. That group of lawmakers met and they held a debate that really wasn't actually about Zephyr's comments. The tone or content of them were much more about the procedural steps to the objection, and if Democrats followed the right rules to make that. And then the Rules Committee voted on party lines to back Regier's decision. Then the House floor voted mostly along party lines to do the same.

Later in that same day, Zephyr again tried to speak on another bill. She was ignored that time, too. Democrats stood up in objection. That prompted another vote by the full House, and they again upheld Regier mostly on party lines.

Montana lawmakers have amended a bill to define sex as binary in state law with language proposed by Gov. Greg Gianforte for a separate bill.

Sally Mauk And as far as we know, the House speaker is not going to recognize a representative Zephyr again unless she apologizes. Is that correct?

Holly Michels Yeah, that's what we're hearing, is unless there's some sort of apology, which Representative Zephyr said she will not be giving, then he won't call on her for the rest of the session. You know, I think we're all expecting the session at this point to probably run into the first week of May. So, you know, there's still a decent amount of time to see how this will play out.

Sally Mauk The Freedom Caucus, Holly in their call for Zephyr to be censured, referred to her with a male pronoun, not recognizing her being transgender.

Holly Michels Yeah, I think, you know, this hits at a lot of discussion we've seen this session. We've actually seen a bill brought and has been passed by the Legislature with Republican support on its way to Governor Gianforte that would say it's not against the law to 'deadname', which is using someone's name they used before they came out as trans, say it's not illegal to do that or misgender students in school. So, you know, this isn't happening in a vacuum.

We heard in that Rules Committee, one of the legislators who actually got a little bit into more of the content of Zephyr's comments was Representative Sharon Stewart Peregoy, a Democrat from Crow Agency. She's Native and she said serving in the Legislature, she's heard discriminatory comments that affect her. She's often had to work to educate people who bring misinformed ideas about her community into debate. And she was saying that those experiences can't be ignored when you're debating the comments of someone, you know, if you're in a minority community and you feel that you're often misrepresented, that you need to be speaking to that community.

You know, I think we've seen a lot of legislation this session aimed at trans people in Montana. We've also heard concerns about words that are used in those debates this session. There was a bill, it's been heavily amended, in earlier versions that would have banned entirely minors from being able to see drag shows in a lot of venues in Montana. We've had Democrats say in committee hearings, you they don't want to hear people who are in support of the bill equating drag performers or trans people with pedophilia. But we've had that kind of testimony deemed ok by a Republican committee chair. So this is something we've had a lot of objections from both sides of the aisle this session about some pretty intense debate on bills. But I don't think we've seen anything rise to quite this level in some time.

Sally Mauk Right. We should point out that a lot of these anti-trans bills are likely to be passed and signed into law by the governor.

Rob, while Representative Zephyr's remarks may have been over the top it is hard not to also conclude that some of her colleagues not only object to her words, but to her as a transgender woman. And the Freedom Caucus members' statement, using the male pronoun to refer to her is a tell, I think.

Rob Saldin Well, Sally, clearly they wanted to draw attention to that, be it because they just don't like transgender people or because they think it's politically advantageous. You know, substantively, it's a little hard to take seriously, even if you do reasonably see Zephyr's comments as inflammatory and over the top. The Republicans in recent years, after all, have not exactly been characterized by decorum and statesmanship. This is the the party of Donald Trump and January 6th and so on. Yet these Freedom Caucus members and their allies apparently want Montanans to believe that Zephyr's comments were just too much for them to endure.

But I suspect what's really going on here is that they're eager to have this fight with Zephyr. They want to turn her into the face of the Montana Democratic Party. We see this kind of thing routinely in Washington, of course, you create a boogeyman, be it Nancy Pelosi or Mitch McConnell or any number of other examples, and then you elevate that boogeyman and use that persona to define the public image of the party at large. And that appears to be what Republicans are doing here with Zephyr. You know, this didn't happen by accident and all the juvenile elements of it, these are clearly intentional. They're meant to provoke, and it's worked. This is the big story of the week. Everyone is focused on this. It's garnered national attention. Kim Abbott and all the Democratic leaders are releasing statements and so forth, and the Republicans think that this works to their advantage.

Sally Mauk Well, for sure it has made Representative Zephyr famous for the moment. All the national news outlets, The New York Times and CBS News have all done stories about this.

But Holly, turning to a different issue, the so-called "jungle primary" bill has been tabled and is likely dead. And this bill would have allowed the top two vote getters in next year's Senate primary race to advance to the general election regardless of party.

Senate Bill 566 would create a primary system in which the top two candidates who win the most votes advance to the general election, regardless of party. Right now, each party has separate primaries and advances a winner.

Holly Michels Yeah, this bill got a lot of attention after it initially cleared the Senate. For a while there was discussion about an amendment that would have actually expanded the bill to more elections than just that Tester race that it very specifically targeted. There was also discussions about making it apply in other years beyond 2024.

An important part of looking at those changes is they were actually in an amendment, they were contained in "whereas" clauses. And that's where legislators put language that showed their intent on a bill, but that language isn't actually codified into law. So, discussions, but that wouldn't have actually been enacted if the bill did advance.

The Senate really narrowly cleared it. There was a 27-24 vote, seven Republicans against it. So it was already on a little bit of shaky ground. And before it went down we saw another bill from the same sponsor, Senator Greg Hertz, a Republican from Polson, that would have made it harder for third parties to get on the ballot. That was voted down by the State House Administration Committee, which also voted this bill down. What we saw is Representative Greg Frazer, a Deer Lodge Republican, bring a motion to table the bill. That motion's not debatable and ends any debate that was already happening. And Frazer said he told other legislators they hear from a lot of these people in his district who didn't like the bill and wanted him to vote against it.

You saw really good reporting from the Montana Free Press about how records are attached to this bill show there was involvement from those active in Republican campaign circles in Montana. And The New York Times later expanded on that reporting, citing text messages between some Republican senators, one of whom said the bill actually came from Senator Steve Daines, who's Montana's Republican senator, also heading up Republican efforts to unseat Tester next year. And those text messages were saying that the bill was actually the brainchild of Jason Thielman, who's worked for Daines for a long time. Daines has not commented on this link, so we don't know what he has to say about that. But after Frazer's motion to table, the bill went down on a 17-1 vote, which is a pretty solid margin. And like you said, Sally, you know, there's less than two weeks left in the session. So for now this bill is dead. It could be revived, but I think it looks like it's going to sit where it is for now.

Sally Mauk Rob, Republicans caught so much flak for this obvious attempt to rig the Tester race, But I do wonder what the fallout is, if any, for Senator Steve Daines, who, as Holly just mentioned, allegedly masterminded the scheme.

Rob Saldin Yeah, right. The whole thing sure landed with a thud. It was just such a transparent attempt to change the rules for the sole purpose of hurting Tester. And that struck a lot of people, including quite a number of Republicans, as just kind of dishonorable. And as you noted, Holly, we now know that all the rumors circling around this were correct. Daines and Thielmann were right at the center of this scheme. So that's not a good look for Daines. Now, this will, of course, all be way, way in the rearview mirror by the time the general election rolls around. But there's no doubt that it looks awfully clunky on Daines' part. And that's a little ironic, I think, because one central talking point of the whole rollout of Daines being the chair for the NRSC this cycle — that is the party organization that leads up all the Senate campaigns — part of the whole rollout of that was that he was going to be so much more competent than Rick Scott, the Florida senator who held that position for the previous cycle. Scott had been criticized for not being more involved in candidate selection and got a good bit of the blame for some of the GOP's poor nominees last year, like Herschel Walker in Georgia and Dr. Oz in Pennsylvania and so forth. Well, Daines was touted as a guy who's going to come in and right the ship at the NRSC. And, you know, one has to think that this probably isn't exactly what Mitch McConnell had in mind.

Sally Mauk Well, the waning days of a legislative session are always chaotic, but this session is winding down with more drama than most so far, anyway. And Holly and Rob, thank you and I'll talk to you next week.

Holly Michels Thanks.

Rob Saldin Thanks, Sally.

Capitol Talk is MTPR's weekly legislative news and analysis program. MTPR's Sally Mauk is joined by Lee Newspapers State Bureau Chief Holly Michels and UM Political Science Professor and Mansfield Center Fellow Rob Saldin.

How do Montana lawmakers govern themselves when governing the state is a part time job? What kinds of ethics rules do lawmakers have to follow? Find out now on The Big Why.

Retired in 2014 but still a presence at MTPR, Sally Mauk is a University of Kansas graduate and former wilderness ranger who has reported on everything from the Legislature to forest fires.
Lee Newspapers State News Bureau Chief Holly Michels appears on MTPR's political analysis programs 'Campaign Beat' and 'Capitol Talk'.
University of Montana Political Science Professor and Mansfield Center Fellow Rob Saldin appears on MTPR's political analysis programs 'Campaign Beat' and 'Capitol Talk'.
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