The federal government has “a strong interest” in a lawsuit challenging a controversial Florida law that requires teachers to use pronouns that correspond to the gender they were assigned at birth, according to a letter filed this week by the Biden administration.
Attorneys with the U.S. Department of Justice’s Civil Rights Division have filed a friend-of-the-court brief in the lawsuit brought by Katie Wood, a transgender teacher from Hillsborough County, and AV Schwandes, a nonbinary teacher who was fired last year from Florida Virtual School. The teachers sought preliminary injunctions as part of a lawsuit challenging the 2023 law’s restrictions.
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The suit claims the restrictions violate the teachers’ First Amendment rights and violate a federal civil rights law.
Chief U.S. District Judge Mark Walker issued a preliminary injunction in April preventing education officials from enforcing the law against Wood, but the injunction does not apply statewide and does not resolve the case. Walker also denied a preliminary injunction from Schwandes.
The Justice Department focused its report Thursday on allegations that the law violates Title VII of the federal Civil Rights Act of 1964 because it discriminates on the basis of sex.
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In determining whether the allegations may proceed, the district judge “needs only to decide whether plaintiffs have sufficiently alleged that the title/pronoun policy discriminates ‘with respect to’ plaintiffs’ ‘terms, conditions, or privileges of employment,'” the Justice Department attorneys wrote, citing a section of federal law.
“They have. As plaintiffs allege, defendants’ title/pronoun policy is a condition of employment because compliance with the policy is mandatory. Plaintiffs were required to comply or risk numerous adverse consequences, including termination of their employment,” the attorneys argued.
The law states, in part, that a school employee “may not provide a student with his or her preferred personal title or pronouns if that preferred personal title or pronouns do not correspond to his or her gender.” The state defines sex as what was assigned at birth.
Violations of the law — one of several backed by the Republican-controlled Legislature and Governor Ron DeSantis in recent years that targeted LGBTQ people — could result in teachers losing certifications and school districts facing heavy financial penalties .
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The “mandatory nature” of the titles and pronouns policy and the “consequences for noncompliance make clear” that the policy is a condition of employment, the Biden administration report said, citing Schwandes’ firing.
“If courts have not previously recognized the personal use of titles and pronouns as related to the terms and conditions of employment … , this may well be because the use of titles and pronouns is not generally the subject of employment policy or regulated in the workplace. But these defendants have chosen 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 policy, makes that policy a condition of employment. the Justice Department lawyers wrote.
The report also referenced a section of the U.S. Equal Employment Opportunity Commission’s compliance manual for guidance on discriminatory employment policies.
An example of a facially discriminatory policy in the manual was that male employees could smoke at their desks, but female employees had to smoke in a lounge, the Biden administration report found.
“Defendants’ discriminatory title/pronoun policy had at least as much impact on Plaintiffs’ terms and conditions of employment as this smoking policy,” the report said.
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Walker’s April decision found that the law violated the right to freedom of expression.
“Once again, the State of Florida has a First Amendment problem. It has happened so often lately that some might say you can set your watch by it,” the chief judge wrote. “This time, the State of Florida declares that it has absolute authority to redefine your identity if you choose to teach in a public school. The question before this Court, then, is whether the First Amendment permits the state to dictate, without limitation, how public school teachers refer to themselves when they communicate with students. The answer is a resounding ‘no.’”
Attorneys for the Florida Department of Education and other defendants asked Walker to dismiss the lawsuit, arguing that the Legislature has the authority to “advance the educational goals of the state and defend the rights of parents.”
However, Walker pointed to a 2022 U.S. Supreme Court ruling in a case called Kennedy v. Bremerton School District, which allowed a high school football coach to pray with his team before games.
“Both Coach Kennedy and Ms. Wood express their own personal messages about their own personal identities to their students—identities that exist independently of their roles as coaches or teachers,” Walker wrote.
Attorneys for state education officials also maintained that the restrictions on the use of pronouns and titles were the “policy” of all public school institutions and therefore a form of government speech that could be restricted.
The state appealed the Wood order to the 11th US Circuit Court of Appeals. The court in Atlanta has granted a state request to expedite the case and is expected to hear arguments in September.
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