The Volokh Conspiracy
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Florida Can Forbid Transgender High School Math Teacher From Using Feminine Pronouns to Refer to Herself in Class, 11th Circuit Says
The appeals court vacated a preliminary injunction that had been based on her First Amendment rights
In a case of first impression, a split panel of the Eleventh Circuit decided today that a transgender high school teacher's speech rights were not violated when the state of Florida required her not to refer to herself in class by her preferred feminine pronouns ("she," "her," "hers") or honorifics ("Ms.," "Mrs.," "Miss") (See also Eugene's post about the decision below.)
From the majority opinion, here is the background:
Katie Wood teaches algebra at a public high school in Florida. Wood was born a biological male but now identifies as a woman. After transitioning in 2020, Wood began using the honorific "Ms." and the gendered pronouns "she," "her," and "hers." Importantly for present purposes, she wrote "Ms. Wood" and "she/her" on her classroom whiteboard and syllabi, she identified herself as "Ms. Wood" in her communications with students, and she wore a pin that said "she/her." Then, in 2023, Florida enacted Fla. Stat. § 1000.071, which states, in pertinent part, that "[a]n 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." Fla. Stat. § 1000.071(3).
In practice, if she used any pronouns or honorifics in class to refer to herself, Florida required her to use masculine ones. That is, it required her to misgender herself. If that's not quite the same thing as compelled speech because she could try to avoid using any pronouns or honorifics, it's the next worst thing. The majority continued:
Wood sued, challenging § 1000.071(3)'s constitutionality. In particular, she sought to enjoin enforcement of the statute on the ground that it violated her First Amendment right to free speech. The district court granted her request for a preliminary injunction. In so doing, the court held that Wood had shown a substantial likelihood of success on the merits of her First Amendment challenge. As relevant here, the court grounded its holding on the premise that when Wood used the identifiers "Ms.," "she," "her," and "hers" in interactions with students, she spoke not as a government employee but rather as a private citizen. See Wood v. Fla. Dep't of Educ., 729 F. Supp. 3d 1255, 1279 (N.D. Fla. 2024). That was so, the court reasoned, because her preferred honorific and pronouns "owe[their] existence not to her professional responsibilities as a math teacher, but instead to her identity as a woman—an identity that remains true to Ms. Wood both inside and outside the classroom." Id. Having concluded that Wood spoke as a citizen, the court went on to hold that her speech touched on a "matter of public concern" and that her interest in expressing herself outweighed the state's interest in promoting workplace efficiency. Id. at 1279–84.
The majority did not itself misgender the plaintiff. But it held that Florida was not required to extend this basic courtesy to her, even when she referred to herself. The majority reasoned as follows:
When a public-school teacher speaks "in the course of performing [her] job"—i.e., "speaking to [her] class in [her] classroom during class hours," Johnson, 658 F.3d at 967—she does so pursuant to her official duties and therefore speaks as a government employee, not a citizen. The speech at issue here—in which Wood verbally provided her preferred honorific and pronouns, wrote them on her whiteboard and syllabi, and wore a "she/her" pin—fits that description precisely….
To be sure, as the dissent correctly notes, the relevant caselaw—both our own and our sister circuits'—expressly permits government regulation of a teacher's curricular speech. But the inverse—that the First Amendment forbids regulation of a teacher's in-class noncurricular speech—doesn't follow.
I think that's right as far as it goes: it can't be the case that the First Amendment categorically protects any and all noncurricular teacher speech in the curricular setting. But that doesn't mean it's open season on all noncurricular speech in the curricular setting.
The dissent rebutted the majority's conclusion that the teacher's use of personal pronouns is fully regulable because it is necessarily government speech that happens in the classroom:
[A] teacher's preferred personal title and pronouns simply do not bear any of the
characteristics of government speech. Personal titles and pronouns have not traditionally been used to convey a government message; there is no evidence that the public associates them with the government; and they are not manufactured, owned, or designed by the government…To the extent that Florida tries to shoehorn the use of preferred personal titles and pronouns into the curricular bucket, that attempt fails. The Supreme Court has generally defined a school's curriculum as activities or matters that are "supervised by faculty members and designed to impart particular knowledge or skills to student participants and audiences." Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 271 (1988). A teacher's preferred personal title and pronouns simply do not fit into this understanding….
We should be wary of holding that everything that happens in a classroom constitutes government speech outside the ambit of the First Amendment. Those who wield the power of the government today and are on one side of the gender and culture wars will be the ones at risk of being compelled to speak against their beliefs, or silenced, when their opponents are in charge. Today's opinion
will then not look as attractive.
The dissent next asserted that the Florida law amounts to viewpoint discrimination:
The statute at issue here, § 1000.071(3), has nothing to do with curriculum and everything to do with Florida attempting to silence those with whom it disagrees on the matter of transgender identity and status. Florida cannot justify its viewpoint discrimination by relying on the very reason that such discrimination is constitutionally suspect—that it gets to decide what speech is permissible (the speech it likes) and what speech is prohibited (the speech it disagrees with).
I'm not sure it's quite right that the Florida law is viewpoint discrimination, although the statute does label the prohibited speech as "false." But it's certainly a form of content-based speech regulation. Under it, the teacher may use the state's approved pronouns to refer to herself but not the disapproved ones. The dissent concluded:
The First Amendment I know, despite its many different (and sometime dizzying) doctrinal lines, would at least require some judicial scrutiny, some balancing of interests, before Florida is allowed to discriminate on the basis of viewpoint. By mistakenly characterizing a teacher's use of her preferred title and pronouns in the classroom as government speech, the majority has foreclosed any meaningful First Amendment review of § 1000.071(3). That is unfortunate, and I respectfully dissent.
My initial reaction is that the dissent overall has the better of the argument.
As I piece together the legal landscape in these fraught times for transgender people and for free speech, putting this decision together with decisions like Meriwether v. Hartop (6th Cir. 2021) (concluding a college professor had a free speech right to misgender his students), it seems school teachers have a First Amendment right against state policy to misgender their students in the classroom but have no First Amendment right against state policy not to misgender themselves in the classroom. And I don't think the differences between the outcome in this decision and the outcome in Meriwether can be chalked up to the differences between the high school and college settings. In fact, the regulatory interests of the state may have been greater in Meriwether because that case did not deal only with the speaker's own dignitary and expressive interests but directly involved the dignitary interests of the third parties (the students) he was addressing, a factor the Sixth Circuit did not even consider.
I teach my students that free speech protects the rights of high schools students to form LGBT students groups and Christian ones, that protection against compelled speech allows people to salute the flag and to refuse to salute (or even to burn) it, and that it protects them when they come out as gay or as evangelical. Laws like the one in Florida, and decisions like the Eleventh Circuit's, complicate that story of evenhandedness and hinder the protection of currently unpopular opinion.
(HT: Casey Pick for alerting me to the decision.)
