Federal appeals court weighs challenge to Florida restrictions on educators’ pronouns

Orlando Sentinel | By Dara Kam | September 25, 2024

Lawsuit alleges law violates teachers’ 1st Amendment rights and runs afoul of federal civil-rights law

TALLAHASSEE — A federal appellate-court panel heard arguments Tuesday in a challenge to a Florida law requiring educators to use pronouns that align with their sex assigned at birth, in a case that has drawn national attention from the Biden administration, teachers unions and LGBTQ advocates.

Lawyers for the state went to the 11th U.S. Circuit Court of Appeals after Chief U.S. District Judge Mark Walker issued a preliminary injunction that blocked enforcement of the 2023 law against transgender Hillsborough County teacher Katie Wood.

The lawsuit alleges the law violates teachers’ First Amendment rights and runs afoul of a federal civil-rights law.

Attorneys for the state argued in court documents that the Legislature has discretion to “promote the state’s pedagogical goals” and “vindicate parental rights.”

Addressing a three-judge panel during a hearing Tuesday in Birmingham, Ala., Brian Weir, an attorney for the state, said the case “raises the question of whether governments can rule teacher speech conveyed directly to their students in the classroom.”

Judge Adalberto Jordan grilled Weir on the issue, posing a set of hypothetical situations exploring how much leeway the government would have over what teachers want to call themselves.

As an example, Jordan floated the possibility that the “state of Florida decides that socialism is good and that they want to protect socialism against all attacks … so they require all teachers to refer to themselves as ‘comrade.’” He asked Weir if that would amount to a First Amendment violation.

“I don’t think so,” Weir, an attorney with the Consovoy McCarthy PLLC firm, answered, adding that school boards can require teachers to use “Mr.” or “Mrs.” instead of their first names.

Jordan then asked if the state could prohibit married teachers from using their maiden names.

“The First Amendment does not distinguish between those hypotheticals,” the state’s lawyer said.

The judge continued to grill Weir on the issue.

“Is it your position that when it comes to the classroom, the state can dictate exactly how a teacher is to refer to himself or herself, vis-a-vis students?” Jordan asked at one point.

“I think everyone agrees that a school board or a state can require teachers to go by ‘Mr.’ and ‘Mrs.’ instead of their first name in the first place. And so if that is true, and that is pursuant to a teacher’s duties — what a teacher is called by students in that context — this case is just a short putt from there,” Weir said.

But Jordan interrupted him.

“No, it’s not. That’s a long drive. The First Amendment … is full of doctrine and cubby holes and all sorts of stuff. And you can’t go from requiring a teacher from referring to himself or herself as ‘Mr.’ or ‘Ms.’ or ‘Mrs.’ as opposed to a first-name basis, to everything else. It’s a starting point, but it’s not a justification under the First Amendment,” the judge said.

Jordan also asked if the restriction applies to noninstructional workers, such as janitors. Weir said it does when they are interacting with students.

“What a crazy world,” the judge said.

Judges Kevin Newsom and Andrew Brasher peppered Weir and Samuel Boyd, who represents Wood, with questions.

Brasher asked if pronouns written on whiteboards, included in a class syllabus or provided verbally to students constituted government speech.

“Can you just address that?” Brasher asked Boyd. “That seems pursuant to a teacher’s official responsibilities.”

Wood wants to be able to tell her students what she wants to be called when they ask her about it, Boyd said.

“And if a student uses the wrong pronoun, which, in her experience, has been unintentional, generally, she’d just say, ‘I actually go by she/her, but that’s fine.’ And so I think that’s the same way as if a teacher was called by the wrong name, then the teacher would have the ability to correct it without their name becoming government speech,” Boyd said.

The pronoun restriction was part of a series of controversial measures that Gov. Ron DeSantis and Republican lawmakers have approved in recent years that focus on transgender people. For example, they have sought to prevent trans minors from receiving puberty blockers and hormone therapy to treat gender dysphoria.

The appeals-court case centers on part of the 2023 law that says a school employee “may not provide to a student his or her preferred personal title or pronouns if such preferred personal title or pronouns do not correspond to his or her sex.” The state defines sex as what was assigned at birth. Educators who violate the law can be fired.

The state has paid the Virginia-based Consovoy McCarthy firm more than $676,000 to represent the State Board of Education and other Florida education officials in the lawsuit and approved a $1 million contract with the firm on Sept. 6.

In a June brief filed at the appeals court, lawyers for the state said public-school systems have the authority to regulate speech of employees.

“The law doesn’t prohibit teachers from advocating publicly their views on usage of preferred titles and pronouns generally,” the brief said. “Nor does it prohibit teachers from providing their preferred titles or pronouns to other employees in school or from providing them to anyone outside school. But even if the law affected more than a teacher’s personal speech at work, the state’s interests in furthering its educational policies and preventing disruption outweigh the narrow subset of speech that the law regulates.”

Walker’s April ruling rejected the state’s arguments that the pronoun restriction was a “pedagogical” decision and, as a result, protected from First Amendment scrutiny.

“Given the personal, self-identifying speech at issue in this case, and the broad application of this restriction to every employee or contractor in the public K-12 context regardless of whether they are responsible for teaching students, this court concludes that the restriction itself is not simply a ‘pedagogical’ or ‘curricular’ choice,” the judge’s order said.

Attorneys in the U.S. Department of Justice’s Civil Rights Division filed a friend-of-the-court brief in June arguing that the restrictions violate what is known as Title VII of the federal Civil Rights Act of 1964 because they discriminate based on sex.

The “mandatory nature” of the title and pronoun policies and the “consequences for non-compliance make clear” that the policies are a term or condition of employment, the Biden administration brief said.