Transgender activist risks jail to challenge law targeting protest
A month earlier, the 45-year-old transgender musician had been part of a group protesting an activist speaking on campus against gender-affirming care for minors. McGovern had been charged with two misdemeanors in connection with the event, Mallory explained when they connected. As it turned out, so had half a dozen others in the crowd of about 200 people. All were transgender.
To McGovern, the goal was clear: Officials were trying to restrict protesters’ free speech by targeting the most vulnerable.
A trial set to start Tuesday in Iowa City will test that assertion. Five of the seven protesters pleaded guilty, and a sixth is set for trial later this year. McGovern pleaded not guilty and plans to take the stand to testify, not just to defend LGBTQ+ rights but the right to assemble.
“Law enforcement needs to understand that constitutional rights do indeed still exist,” said McGovern, who uses they/them pronouns. “People do have the right to protest.” And transgender people “deserve to be seen.”
While Iowa City is a politically liberal, socially progressive community, the state of Iowa has veered sharply right in recent years — and not just on LGBTQ issues. It was among 16 states to enact “Back the Blue” laws, increasing protest-related penalties following demonstrations over the killing of George Floyd in Minnesota in 2020, according to the National Conference of State Legislatures. Gov. Kim Reynolds (R) signed Iowa’s measure after her car struck a protester during a Black Lives Matter rally.
“Conservative legislatures since then have been focusing on these violations,” said Timothy Zick, a professor at William & Mary Law School whose recent book, “Managed Dissent,” examines laws governing street demonstrations. “The penalties are going up; the criminal penalties are getting more serious. … I would not be surprised to see more of these prosecutions going forward.”
Such issues are also getting taken up at the federal level. In Washington, Republican Sens. Thom Tillis of North Carolina and Marsha Blackburn of Tennessee are pushing the Safe and Open Streets Act, which would make it a federal crime for protesters to block a public road. And the Supreme Court has been asked to reconsider a case brought against Black Lives Matter activist DeRay Mckesson that contends he was liable when a Baton Rouge officer was injured from a rock thrown by an unidentified person during a 2016 protest Mckesson organized.
The U.S. Court of Appeals for the 5th Circuit initially ruled in favor of police, but the Supreme Court sent the case back after saying that ruling was “fraught with implications for First Amendment rights.” The 5th Circuit reaffirmed its ruling last summer, and Mckesson is asking the Supreme Court to reconsider it.
“You can’t consider these laws in isolation,” Zick said. “The more you compound laws on the protest environment, you increase criminal and civil penalties, people may decide the better course of action is not to show up at all, not to protest.”
While the laws may not be unconstitutional, the impact on speech can be, he noted. “It depends on how these laws are enforced,” he said. “It’s the treating of protests and dissent as felonious and adding penalties to penalties that already exist, which raises concerns about chilling public protest. ”
Anti-LGBTQ+ legislation continues to be a galvanizing subject, and Iowa lawmakers were busy on that front in 2023, banning gender-affirming care for youths and public school instruction about gender identity as well as restricting students to bathrooms that match their designated sex at birth. This year they’ve introduced 34 anti-LGBTQ+ bills, according to the American Civil Liberties Union, including one to eliminate transgender civil rights protections.
Leigh Finke, executive director of the Minneapolis-based Queer Equity Institute, a regional nonprofit, has been working in Iowa and surrounding red states that recently restricted transgender rights. She views the charges against McGovern as part of a conservative effort to chill protest speech — on LGBTQ+ rights, Black Lives Matter and other issues.
After Iowa’s Back the Blue Act expanded protections for drivers who hit street protesters, a driver in Cedar Rapids was acquitted last year of charges he faced for hitting and injuring a protester during a 2022 abortion rights demonstration.
“We are seeing a removal of the right of assembly. In the name of free speech, there is a movement to quell opposition speech,” said Finke, Minnesota’s first transgender state representative, calling the result “a clear choosing of winners and losers, which speech is protected and which speech is not.”
McGovern, who grew up in Rochester, Minn., moved to Iowa City to attend college. They’ve attended protests against sexual violence, for racial justice and, more recently, for Palestinians. What happened last fall was the first arrest for the mother of two, who works at a local arts center and children’s museum and identifies as a political independent. The charges filed were interference with official acts and disorderly conduct obstructing streets, the more serious of the two misdemeanors.
The prosecutor handling the case has requested the jury not be told that the defendant was among seven transgender people charged, arguing it’s “irrelevant to the jury’s determination.” McGovern disagrees and disputes the detective’s account of the actions that lead to the arrests.
Mallory, the university police detective, cited the impending trial in declining to comment on McGovern’s case via a department spokesman. But in police reports, he described the scene outside the Iowa Memorial Union where Chloe Cole, who once identified as transgender, was the featured speaker. Her audience included numerous state lawmakers.
“Protesters were chanting and constantly trying to walk in the street in front of the vehicles … preventing them from driving away,” Mallory wrote. “Tens of those people abided by police requests and instructions to leave the roadway and were nonconfrontational,” but McGovern and two other protesters were “questioning why they can’t just do what they want and claimed they had rights. When I advised them they can cross the street, the female and male crossed and the older lady [McGovern] hissed back at me to not ‘misgender’ her nor talk to her and walked away from me.”
He wrote that McGovern pushed and “tried to argue with [police Lt. Travis Tyrrell] that she and others were allowed to protest in the roadway” and then “began yelling at Tyrrell to stop touching her.” McGovern, he continued, “was only being touched by Tyrrell because she wanted to disobey his commands.”
McGovern insists they didn’t break the law during the protest and that police body-camera video entered as evidence proves it, contradicting the detective’s account. In the footage reviewed by The Washington Post, McGovern and other protesters are seen continuously walking back and forth across the street as police try to keep them on the sidewalk. An officer tells McGovern, who’s carrying rainbow and trans rights flags, that “it’s against the law to block an intersection.” The officer is then seen reaching out to move McGovern and other protesters out of the road.
“Take your hands off me!” McGovern can be heard saying.
“I will not,” Tyrrell responds.
During questioning by McGovern’s attorney ahead of trial, Mallory said he had been tracking McGovern’s social media since 2021, when they spoke out against the sheriff buying decommissioned military vehicles.
Police are “trying to obscure the targeted arrest of only trans protesters,” McGovern said in a recent interview.
The decision to prosecute shocked many in Iowa City, especially since it was made by a Democrat, Johnson County District Attorney Rachel Zimmermann Smith. Supporters of the JoCo7 — as those arrested have been dubbed — started a petition on Change.org to have the charges dropped, gathering some 1,400 signatures and raising more than $14,500 for protesters’ legal fees. The local Human Rights Commission also called for Zimmermann Smith to dismiss the charges, as did County Supervisor V Fixmer-Oraiz, who is transgender.
Democrats even proposed censuring Zimmermann Smith during a packed party leadership meeting in February. The debate at the Iowa City carpenters union was heated. Zimmermann Smith attended. So did McGovern.
“I think it’s incredibly important as a party that we talk about justice and the fact that is a value we share,” said city council member Laura Bergus, who urged censure. “Let’s hold that common ground and hold each other accountable.”
Former Johnson County attorney Janet Lyness, opposing censure, said protesters deserved to be charged because they illegally blocked the street and there was no evidence police targeted them for being LGBTQ. If Zimmermann Smith hadn’t charged them, she said, Iowa’s Republican attorney general could have.
The crowd booed. Censure failed. McGovern was dismayed to see several friends vote against the motion, including a former college classmate, someone McGovern campaigned for and another to whose child McGovern gave music lessons.
Zimmermann Smith declined to comment ahead of Tuesday’s trial, as did McGovern’s attorney.
Win or lose in court — McGovern faces a fine of up to $3,415 and as much as 13 months in jail if convicted — they hope the trial will raise public awareness of the legislature’s efforts to restrict protest speech.
“It’s not an isolated incident. And it’s only going to continue to be more prevalent,” McGovern said. “Even in a very liberal town like ours, there’s an attempt to squash dissent. And the Back the Blue bill of 2021 enables our law enforcement to have a lot more power than I think they should have and also than I think people realize.”
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