Chief U.S. District Judge Mark E. Walker of the U.S. District Court for the Northern District of Florida immediately cut to the chase in his April 9 decision issuing a preliminary injunction to protect a transgender public school teacher’s right to use the words consistent with her gender identity when communicating with her students.
“Once again,” he wrote, citing four recent decisions by the 11th Circuit Court of Appeals, “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.”
Explaining what the case is about, Judge Walker 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.’”
Last year, Florida enacted a statutory provision applicable to its K-12 public schools establishing a “policy” that “a person’s sex is an immutable biological trait and that it is false to ascribe to a person a pronoun that does not correspond to such person’s sex.” Another provision of the same statute mandates that “an employee or contractor of a public K-12 educational institution 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 statute provides that the Education Practices Commission can impose penalties that range from a fine to revoking a teacher’s certificate. Of course, if a teacher refuses to comply with the law, their employer can fire them.
The statute produces ridiculous results, shown by the case of Katie Wood, a teacher at a public high school in Hillsborough County, who teaches algebra to 10th graders. A transgender woman, “Ms. Wood referred to herself by her preferred title — Ms. Wood — and used her preferred pronouns when interacting with students” during the 2021-2022 and 2022-2023 school years. For example, wrote Judge Walker, “Ms. Wood wrote her title and pronouns in the corner of her classroom whiteboard and wore a pin with her pronouns in her lanyard.” Students generally referred to her by her preferred title and pronouns. If they didn’t, “she could and would correct the student.”
The title/pronoun law went into effect for the 2023-2024 school year. The school board informed Katie Wood that the law prevented her from using her preferred pronouns and titles when communicating with students at school. To avoid running into immediate trouble, she has refrained from using her preferred title and pronouns when communicating with students, which is ridiculous, considering that she is living as a woman. She filed suit against the Florida Department of Education, the county school board, the Commissioner of Education, the members of the State Board of Education, and the members of the Education Practices Commission, claiming a violation of her statutory and constitutional rights.
Katie Wood has a co-plaintiff, AV Schwandes, who was a teacher at Florida Virtual School from July 2021 until October 2023. Schwandes identifies as non-binary. When they began teaching, they used female pronouns and “Mrs.” but in 2023 came out as non-binary and began using “Mx.” and neutral pronouns. When they refused the school’s demand to comply with the new state law, they were suspended without pay and then discharged, receiving a letter from the Department of Education stating that it had opened an investigation about their “failure to follow directives from your employer.” Schwandes joined with Wood in the lawsuit.
They allege violations of Title VII of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, the First Amendment freedom of speech, and the 14th Amendment. Both plaintiffs sought a preliminary injunction as “emergency relief to remedy the ongoing harms caused by continued application” of the statute. Their motion for preliminary injunction relied only on Title VII and the First Amendment.
The defendants, opposing the motion, argued that the First Amendment was irrelevant, claiming that when communicating with students, a teacher is engaged in speech that is part of their job as a public employee, so it is “government speech” and the First Amendment does not apply. Judge Walker rejected this argument, finding that speech in which an individual communicates their identity is not government speech, but rather the speech of that individual. And, he found, for purposes of issuing a preliminary injunction, that Ms. Wood had standing to bring the case and was likely to prevail on the merits of her First Amendment claim.
However, the judge concluded that the Title VII claim was not meritorious, rejecting the argument that the statute discriminates against employees because of their sex. Also, for purposes of a preliminary injunction, he found that Mx. Schwandes lacked standing to seek such emergency injunctive relief because they are no longer employed as a teacher and thus, at least theoretically, no longer restricted from using whatever titles or pronouns they desire.
Pressing home the point about free speech protection in the matter of titles and pronouns, Judge Walker invoked the great gay poet, Walt Whitman: “This Court is reminded of Walt Whitman’s ‘Song of Myself,’ a gleefully sweeping masterpiece of American poetry that opens with these lines: ‘I celebrate myself, and sing myself, And What I assume you shall assume, For every Atom belonging to me as good belongs to you.’ In sharing her preferred title and pronouns, Ms. Wood celebrates herself and sings herself — not in a disruptive or coercive way, but in a way that subtly vindicates her identity, her dignity, and her humanity. Section 1000.071(3) has silenced her and, by silencing her, forced her to inhabit an identity that is not her own. The State of Florida has not justified this grave restraint, and so the United States Constitution does not tolerate it. Ours is a Union of individuals, celebrating ourselves and singing ourselves and being ourselves without apology.”
This ruling is only about preliminary injunctions. Mx. Schwandes and Ms. Woods remain co-plaintiffs seeking a ruling on the merits, and Mx. Schwandes surely has a strong claim to compensation for being discharged in violation of their constitutional right of free speech. Expect the state to appeal this ruling to the 11th Circuit Court of Appeals, which, as Judge Walker observed, has ruled against the state in a series of First Amendment challenges to various statutes passed by Governor Ron DeSantis and his Republican-dominated obedient State Legislature.
The plaintiffs are represented by lawyers from the Southern Poverty Law Center and Southern Legal Counsel, Inc. Judge Walker was appointed by President Barack Obama.
