A federal judge blocks a Florida law that restricts teachers from using some pronouns saying it violates the First Amendment

pronouns they them
Illustration of gender pronouns by Ekaterina Tveitan via iStock for WMNF News.

By Dara Kam ©2024 The News Service of Florida

TALLAHASSEE — A federal judge on Tuesday blocked Florida education officials from enforcing a law requiring a transgender teacher to use pronouns that align with her sex assigned at birth, saying the law violated her First Amendment rights.

The 2023 law restricts educators’ use of personal pronouns and titles in schools. Violations of the law — one of a number of measures backed by the Republican-controlled Legislature and Gov. Ron DeSantis targeting the LGBTQ community over the past few years — can result in teachers being stripped of certifications and hefty financial penalties for school districts.

Plaintiffs Katie Wood, a transgender Hillsborough County teacher, and AV Schwandes, a nonbinary teacher fired last year by Florida Virtual School, sought preliminary injunctions as part of a lawsuit challenging the restrictions.

The challenge alleged the law violates the teachers’ First Amendment rights and runs afoul of a federal civil rights law.

Chief U.S. District Judge Mark Walker issued a preliminary injunction Tuesday that blocked enforcement of the law against Wood, but the injunction does not apply statewide. Walker’s decision also denied a preliminary injunction sought by Schwandes.

“Once again, the state of Florida has a First Amendment problem. Of late, it has happened so frequently, some might say you can set your clock by it,” Walker’s 60-page ruling began. “This time, the state of Florida declares that it has the absolute authority to redefine your identity if you choose to teach in a public school. So, the question before this court is whether the First Amendment permits the state to dictate, without limitation, how public-school teachers refer to themselves when communicating to students. The answer is a thunderous ‘no.’”

Attorneys for the Florida Department of Education and other defendants asked Walker to dismiss the lawsuit, arguing that the Legislature has discretion to “promote the state’s pedagogical goals and vindicate parental rights.”

But Walker pointed to a 2022 U.S. Supreme Court decision, in a case known as Kennedy v. Bremerton School District, allowing a high-school football coach to pray with his team before games.

“Both Coach Kennedy and Ms. Wood are expressing their own personal messages about their own personal identities to their students — identities that exist independent from their roles as coach or teacher,” Walker wrote.

Walker 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.

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

But the judge disagreed, writing 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.”

Relying in part on court rulings in a challenge to a Florida law aimed at restricting children from attending drag shows, Walker also said the injunction would apply only to Wood — not statewide, as the plaintiffs’ lawyers sought.

U.S. District Judge Gregory Presnell last year blocked the 2023 drag show law statewide, finding it violated First Amendment rights. An appeals court rejected the DeSantis administration’s request to lift Presnell’s preliminary injunction, and the U.S. Supreme Court allowed the injunction to remain in place. The lawsuit was filed by an Orlando restaurant known as Hamburger Mary’s.

Walker’s order Tuesday said that Presnell’s decision found the drag show law was “facially content-based, unconstitutionally vague and overbroad.” But the same conclusions don’t apply to the restrictions imposed on the teacher, according to Walker.

“In Ms. Wood’s case, she has not alleged a First Amendment overbreadth claim in her complaint. Nor has she persuasively explained why she is entitled to a statewide injunction,” Walker wrote, noting that injunctions should be “limited in scope” to the extent necessary.

“Accordingly, based on this record, the scope of the preliminary injunction in this case need extend no further than prohibiting defendants from enforcing the challenged provision against Ms. Wood to protect her interests while this case remains pending,” the judge wrote.

In granting the injunction, Walker said the teacher used her preferred pronouns before the law went into effect and that the “threat of mandatory discipline” prevents her from using them now.

“This is a classic speech injury — Ms. Wood spoke in the past and wants to speak in the future, but she is deterred by a credible threat of discipline. This court concludes that Ms. Wood has submitted sufficient evidence to establish an injury-in-fact,” he wrote.

The judge also decided that neither teacher “has demonstrated a likelihood of success” on allegations that the law violates a federal employment law prohibiting discrimination.

“The record before this court does not indicate that Ms. Wood was transferred, demoted, or passed over for training or promotion. Further, Ms. Wood has not asserted that the prestige or responsibility of her position as an educator has been diminished,” Walker wrote.

Walker’s ruling also found that Schwandes, who uses the pronouns they/them, “has not submitted sufficient evidence to find that their speech is being chilled” by state education officials’ enforcement of the law.

Schwandes “has not identified any speech that they would engage in at a foreseeable time that is barred” under the law, and also has not said they are looking for employment at a school where the law would be enforced, Walker wrote.

“In short, Mx. Schwandes has not come forward with any evidence showing that they intend to engage in speech in the foreseeable future that would violate” the law, he added.

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