Judge allows suit over Florida’s teacher pronoun restriction law to move forward

Sun Sentinel | By Dara Kam| July 11, 2024

TALLAHASSEE — A federal judge this week refused to toss out a lawsuit challenging a controversial Florida law requiring teachers to use pronouns that align with their sex assigned at birth, saying plaintiffs “plausibly” alleged the law violates protections against workplace discrimination.

Chief U.S. District Judge Mark Walker’s ruling Wednesday pointed, in part, to a friend-of-the-court brief filed by the Biden administration in the lawsuit brought by Katie Wood, a transgender Hillsborough County teacher, and AV Schwandes, a nonbinary teacher fired last year by Florida Virtual School.

The U.S. Department of Justice’s brief focused on allegations that the 2023 law violates what is known as Title VII of the federal Civil Rights Act of 1964 because it discriminates based on sex.

To determine whether the allegations in the lawsuit should be allowed to advance, the judge “need only decide whether plaintiffs have sufficiently pled that the title/pronoun policies discriminate ‘with respect to’ plaintiffs’ ‘terms, conditions, or privileges of employment,’” the Justice Department lawyers wrote, citing part of the federal law.

The “mandatory nature” of the state restrictions and the “consequences for non-compliance make clear” that the policies are a term or condition of employment, the Biden administration brief said, pointing to Schwandes’ firing.

Walker in April issued a preliminary injunction that blocked enforcement of the law against Wood, but the injunction did not apply statewide. Also, he denied a preliminary injunction sought by Schwandes.

The April decision said neither teacher “has demonstrated a likelihood of success” on allegations that the law violates the federal employment law prohibiting discrimination. The judge, however, allowed the plaintiffs to revise the complaint.

After an amended complaint was filed, the state sought dismissal.

Walker in Wednesday’s ruling said his previous decision “erred” on the employment-law issue and noted that he relied on case law “that is no longer good law” following a recent U.S. Supreme Court decision in a case known as Muldrow v. St. Louis. The Muldrow decision rejected a heightened legal standard of scrutiny used by appellate courts in employment-law cases.

“Moreover, this court (Walker) oversimplified the issue and failed to consider the ordinary meaning of the statutory text — namely, the ordinary meaning of ‘terms,’ ‘conditions,’ and ‘privileges,’” Walker wrote. “Accordingly, this court rejects its previous analysis and incorporates by reference the thoughtful analysis set out in the United States of America’s statement of interest … as if fully set forth herein.”

The 2023 law says, in part, that 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.

Violations of the law — one of a number of measures backed by the Republican-controlled Legislature and Gov. Ron DeSantis targeting LGBTQ people over the past few years — can result in teachers losing certifications and hefty financial penalties for school districts.

In asking Walker to dismiss the lawsuit, attorneys for the Florida Department of Education and other defendants argued that the Legislature has discretion to “promote the state’s pedagogical goals and vindicate parental rights.” The Arlington, Va.-based Consovoy McCarthy firm has received nearly $390,000 for representing state education officials in the lawsuit.

Lawyers for education officials also maintain that the pronoun and title restrictions are the “policy” of all public-school institutions and are therefore government speech, which can be restricted.

But the judge disagreed, writing in April that the “official ‘policy’ label does not necessarily transform Ms. Wood’s speech into a government message whenever she introduces herself or provides her pronouns to students.”

Walker’s ruling Wednesday also found the plaintiffs’ amended lawsuit “plausibly alleges” that the pronoun policy violates a federal education law protecting people from discrimination based on sex.

After Walker in April issued the preliminary injunction applying to Wood, the state appealed the decision. The Atlanta-based 11th U.S. Circuit Court of Appeals last month agreed to speed up consideration of the appeal and is slated to hear arguments in September. Walker has set a February trial in the overall lawsuit.

The litigation over pronouns is just one of several lawsuits swirling around Florida laws about trans children and adults.

U.S. District Judge Robert Hinkle last month ruled that a 2023 law and regulations prohibiting the use of puberty blockers and hormone therapy to treat children for gender dysphoria and making it harder for trans adults to access care are unconstitutionally discriminatory and were motivated by “animus” toward transgender people.

Hinkle permanently barred Florida health officials from enforcing the law, which also carried heavy sanctions and potential jail time for doctors who violated the restrictions.

In a 101-page ruling, the judge wrote that “gender identity is real” and likened opposition to transgender people to racism and misogyny.

The state appealed and requested a stay of Hinkle’s decision while the appeal plays out. But
Hinkle on Thursday rejected putting the decision on hold, finding in part that the plaintiffs have a “strong showing of likely success on the merits.”

Hinkle also noted that the U.S. Supreme Court recently agreed to decide whether a similar Tennessee law restricting puberty blockers and hormone therapy for transgender children is unconstitutional.

In seeking a stay of his ruling, lawyers for the state said Florida would have no control over the way gender-affirming care is provided if the decision is not blocked.

But Hinkle rejected the argument.

“The state has in place abundant means of ensuring that healthcare professionals adhere to the prevailing standards of care. The state allowed and even paid for gender-affirming care for many years before enacting the statute and rules at issue in a wave of anti-transgender bias,” he wrote.

Hinkle also scolded the state’s lawyers for arguing that the judge’s order failed to give proper deference to legislative decision-making.

“The defendants apparently assert that when there are mixed motives — a legitimate purpose alongside a discriminatory purpose — the presumption of good faith requires a court to ignore the discriminatory purpose and assume the only relevant purpose was the legitimate one. Not so,” he wrote in Thursday’s 12-page ruling.

The state has paid the Holtzman Vogel firm at least $658,000 to represent Surgeon General Joseph Ladapo and other state officials in the litigation.