TALLAHASSEE 鈥� A federal judge this week refused to toss out a lawsuit challenging a controversial Florida law requiring teachers to use pronouns that align with their sex assigned at birth, saying plaintiffs 鈥減lausibly鈥� alleged the law violates protections against workplace discrimination.
Chief U.S. District Judge Mark Walker鈥檚 ruling Wednesday pointed, in part, to a friend-of-the-court brief filed by the Biden administration 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 U.S. Department of Justice鈥檚 brief focused on allegations that the 2023 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 in the lawsuit should be allowed to advance, the judge 鈥渘eed only decide whether plaintiffs have sufficiently pled that the title/pronoun policies discriminate 鈥榳ith respect to鈥� plaintiffs鈥� 鈥榯erms, conditions, or privileges of employment,鈥欌�� the Justice Department lawyers wrote, citing part of the federal law.
The 鈥渕andatory nature鈥� of the state restrictions 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, pointing to Schwandes鈥� firing.
READ MORE: Federal judge blocks enforcement of Florida's school pronoun restrictions
Walker in April issued a preliminary injunction that blocked enforcement of the law against Wood, but the injunction did not apply statewide. Also, he denied a preliminary injunction sought by Schwandes.
The April decision said neither teacher 鈥渉as demonstrated a likelihood of success鈥� on allegations that the law violates the federal employment law prohibiting discrimination. The judge, however, allowed the plaintiffs to revise the complaint.
After an amended complaint was filed, the state sought dismissal.
Walker in Wednesday鈥檚 ruling said his previous decision 鈥渆rred鈥� on the employment-law issue and noted that he relied on case law 鈥渢hat is no longer good law鈥� following a recent U.S. Supreme Court decision in a case known as Muldrow v. St. Louis. The Muldrow decision rejected a heightened legal standard of scrutiny used by appellate courts in employment-law cases.
鈥淢oreover, this court (Walker) oversimplified the issue and failed to consider the ordinary meaning of the statutory text 鈥� namely, the ordinary meaning of 鈥榯erms,鈥� 鈥榗onditions,鈥� and 鈥榩rivileges,鈥欌�� Walker wrote. 鈥淎ccordingly, this court rejects its previous analysis and incorporates by reference the thoughtful analysis set out in the United States of America鈥檚 statement of interest 鈥� as if fully set forth herein.鈥�
The 2023 law says, in part, that 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.
Violations of the law 鈥� one of a number of measures backed by the Republican-controlled Legislature and Gov. Ron DeSantis targeting LGBTQ people over the past few years 鈥� can result in teachers losing certifications and hefty financial penalties for school districts.
In asking Walker to dismiss the lawsuit, attorneys for the Florida Department of Education and other defendants argued that the Legislature has discretion to 鈥減romote the state鈥檚 pedagogical goals and vindicate parental rights.鈥� The Arlington, Va.-based Consovoy McCarthy firm has received nearly $390,000 for representing state education officials in the lawsuit.
Lawyers for education officials also maintain that the pronoun and title restrictions are the 鈥減olicy鈥� of all public-school institutions and are therefore government speech, which can be restricted.
But the judge disagreed, writing in April that the 鈥渙fficial 鈥榩olicy鈥� label does not necessarily transform Ms. Wood鈥檚 speech into a government message whenever she introduces herself or provides her pronouns to students.鈥�
Walker鈥檚 ruling Wednesday also found the plaintiffs鈥� amended lawsuit 鈥減lausibly alleges鈥� that the pronoun policy violates a federal education law protecting people from discrimination based on sex.
After Walker in April issued the preliminary injunction applying to Wood, the state appealed the decision. The Atlanta-based 11th U.S. Circuit Court of Appeals last month agreed to speed up consideration of the appeal and is slated to hear arguments in September. Walker has set a February trial in the overall lawsuit.
The litigation over pronouns is just one of several lawsuits swirling around Florida laws about trans children and adults.
U.S. District Judge Robert Hinkle last month ruled that a 2023 law and regulations prohibiting the use of puberty blockers and hormone therapy to treat children for gender dysphoria and making it harder for trans adults to access care are unconstitutionally discriminatory and were motivated by 鈥渁nimus鈥� toward transgender people.
Hinkle permanently barred Florida health officials from enforcing the law, which also carried heavy sanctions and potential jail time for doctors who violated the restrictions.
In a 101-page ruling, the judge wrote that 鈥済ender identity is real鈥� and likened opposition to transgender people to racism and misogyny.
The state appealed and requested a stay of Hinkle鈥檚 decision while the appeal plays out. But
Hinkle on Thursday rejected putting the decision on hold, finding in part that the plaintiffs have a 鈥渟trong showing of likely success on the merits.鈥�
Hinkle also noted that the U.S. Supreme Court recently agreed to decide whether a similar Tennessee law restricting puberty blockers and hormone therapy for transgender children is unconstitutional.
In seeking a stay of his ruling, lawyers for the state said Florida would have no control over the way gender-affirming care is provided if the decision is not blocked.
But Hinkle rejected the argument.
鈥淭he state has in place abundant means of ensuring that healthcare professionals adhere to the prevailing standards of care. The state allowed and even paid for gender-affirming care for many years before enacting the statute and rules at issue in a wave of anti-transgender bias,鈥� he wrote.
Hinkle also scolded the state鈥檚 lawyers for arguing that the judge鈥檚 order failed to give proper deference to legislative decision-making.
鈥淭he defendants apparently assert that when there are mixed motives 鈥� a legitimate purpose alongside a discriminatory purpose 鈥� the presumption of good faith requires a court to ignore the discriminatory purpose and assume the only relevant purpose was the legitimate one. Not so,鈥� he wrote in Thursday鈥檚 12-page ruling.
The state has paid the Holtzman Vogel firm at least $658,000 to represent Surgeon General Joseph Ladapo and other state officials in the litigation.
