Feds weigh in against Florida’s pronoun law

By Dara Kam ©2024 The News Service of Florida

TALLAHASSEE — The federal government “has a strong interest” in a lawsuit challenging a controversial Florida law requiring teachers to use pronouns that align with their sex assigned at birth, according to a brief filed this week by the Biden administration.

Attorneys in the U.S. Department of Justice’s Civil Rights Division filed a friend-of-the-court brief 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 teachers sought preliminary injunctions as part of a lawsuit challenging restrictions in the 2023 law.

The case alleges the restrictions violate the teachers’ First Amendment rights and run afoul of a federal civil rights law.

Chief U.S. District Judge Mark Walker in April issued a preliminary injunction that blocked education officials from enforcing the law against Wood, but the injunction does not apply statewide or resolve the case. Walker also denied a preliminary injunction sought by Schwandes.

The Justice Department’s brief Thursday focused on allegations that the 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 should be allowed to advance, the district 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, referring to part of the federal law.

“They have. Indeed, as alleged by plaintiffs, defendants’ title/pronoun policies are a term or condition of employment because compliance with the policies is mandatory. Plaintiffs had to comply or risk numerous adverse consequences, including termination of their employment,” the lawyers argued.

The 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.

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, pointing to Schwandes’ firing.

“If courts have not previously recognized personal use of titles and pronouns as related to the terms or conditions of employment … , that may well be because title and pronoun usage has not typically been a subject of employment policies or regulated in the workplace. But these defendants have opted to regulate employees’ use of titles and pronouns in the workplace. Their choice to do so, and to condition plaintiffs’ employment on compliance with the title/pronoun policies, makes those policies a term or condition of employment,” the Justice Department lawyers wrote.

The brief also referred to part of a U.S. Equal Employment Opportunity Commission compliance manual for guidance about discriminatory work policies.

An example of a facially discriminatory policy included in the manual permitted male employees to smoke at their desks but required female employees to smoke in a lounge, according to the Biden administration’s brief.

“Defendants’ facially discriminatory title/pronoun policy affected plaintiffs’ terms and conditions of employment at least as much as this smoking policy,” the brief said.

Walker’s April injunction decision found that the law violated speech rights.

“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,” the chief judge wrote. “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.

Lawyers for state 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.

The state appealed the Wood injunction to the 11th U.S. Circuit Court of Appeals. The Atlanta-based court granted a state request to speed up the case and is slated to hear arguments in September.