TALLAHASSEE 鈥� 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鈥� 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 鈥減romote the state鈥檚 pedagogical goals鈥� and 鈥渧indicate parental rights.鈥�
Addressing a three-judge panel during a hearing Tuesday in Birmingham, Ala., Brian Weir, an attorney for the state, said the case 鈥渞aises the question of whether governments can rule teacher speech conveyed directly to their students in the classroom.鈥�
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 鈥渟tate of Florida decides that socialism is good and that they want to protect socialism against all attacks 鈥� so they require all teachers to refer to themselves as 鈥榗omrade.鈥欌�� He asked Weir if that would amount to a First Amendment violation.
鈥淚 don鈥檛 think so,鈥� Weir, an attorney with the Consovoy McCarthy PLLC firm, answered, adding that school boards can require teachers to use 鈥淢r.鈥� or 鈥淢rs.鈥� instead of their first names.
Jordan then asked if the state could prohibit married teachers from using their maiden names.
鈥淭he First Amendment does not distinguish between those hypotheticals,鈥� the state鈥檚 lawyer said.
The judge continued to grill Weir on the issue.
鈥淚s 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?鈥� Jordan asked at one point.
鈥淚 think everyone agrees that a school board or a state can require teachers to go by 鈥楳r.鈥� and 鈥楳rs.鈥� instead of their first name in the first place. And so if that is true, and that is pursuant to a teacher's duties 鈥� what a teacher is called by students in that context 鈥� this case is just a short putt from there,鈥� Weir said.
But Jordan interrupted him.
鈥淣o, it鈥檚 not. That鈥檚 a long drive. The First Amendment 鈥� 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 鈥楳r.鈥� or 鈥楳s.鈥� or 鈥楳rs.鈥� 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,鈥� the judge said.
'What a crazy world'
Jordan also asked if the restriction applies to non-instructional workers, such as janitors. Weir said it does when they are interacting with students.
鈥淲hat a crazy world,鈥� 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.
鈥淐an you just address that?鈥� Brasher asked Boyd. 鈥淭hat seems pursuant to a teacher鈥檚 official responsibilities.鈥�
Wood wants to be able to tell her students what she wants to be called when they ask her about it, Boyd said.
鈥淎nd if a student uses the wrong pronoun, which, in her experience, has been unintentional, generally, she鈥檇 just say, 鈥業 actually go by she/her, but that鈥檚 fine.鈥� 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,鈥� Boyd said.
Controversial transgender laws
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 鈥渕ay 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.鈥� 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.
鈥淭he law doesn鈥檛 prohibit teachers from advocating publicly their views on usage of preferred titles and pronouns generally,鈥� the brief said. 鈥淣or 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鈥檚 personal speech at work, the state鈥檚 interests in furthering its educational policies and preventing disruption outweigh the narrow subset of speech that the law regulates.鈥�
Walker鈥檚 April ruling rejected the state鈥檚 arguments that the pronoun restriction was a 鈥減edagogical鈥� decision and, as a result, protected from First Amendment scrutiny.
鈥淕iven 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 鈥榩edagogical鈥� or 鈥榗urricular鈥� choice,鈥� the judge鈥檚 order said.
Attorneys in the U.S. Department of Justice鈥檚 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 鈥渕andatory nature鈥� of the title and pronoun policies and the 鈥渃onsequences for non-compliance make clear鈥� that the policies are a term or condition of employment, the Biden administration brief said.
