He, They, Oh Vey: Breaking Down DeSantis’ Pronoun Bill

Love him or hate him, the current governor for the state of Florida has a notorious gubernatorial reputation. Rare for a politician, he rose to media prominence for his education policy: opposing mask mandates in schools, banning African American history curriculum, attempting to ban Diversity, Equity and Inclusion curriculum at colleges, and passing the “Don’t Say Gay Bill.”

This year, as he prepares for the 2024 presidential election, DeSantis has signed another “anti-woke” bill into effect: Bill HB 1069, Fla. Laws ch. 2023-105. The new law provides 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.”

Florida public school teachers recently filed a lawsuit against the state’s Department of Education in response, arguing the law violates Title VII of the Civil Rights Act of 1964, the Equal Protection clause of the Fourteenth Amendment, and public school teachers’ rights to free speech as protected by the First Amendment. The case will be argued in the Florida North District Court before the honorable Mark Walker.

While the court will likely repeal the law on Title VII and Fourteenth Amendment grounds, it should not uphold the plaintiff’s argument that this state policy violates protected speech. To do so would violate the precedent established in Garcetti v. Ceballos and leave the door open for politicians to weaponize the legal battle over free speech in schools to dangerous ends. Although a favorable ruling would align with the plaintiffs’ ideology now, it could be equally applied against other political ideologies with disastrous consequences in the future. Such a decision would ultimately secure a short-term victory for the plaintiff at the cost of long-term protection.

In the lawsuit, the plaintiff’s note that “under subsection 3, whether an employee may provide to students the title Ms. and she/her pronouns depends entirely on whether the employee’s sex is deemed male or female: if the employee’s sex is deemed female, then the employee may provide them to students, but if the employee’s sex is deemed male, then the employee may not.”

HB 1069 Subsection 3 violates Title VII of the Civil Rights Act of 1964. Title VII secures an individual's right not to be discriminated against in employment because of sex. An employee can use a “he” pronoun solely dependent on his biological sex. If they are biologically male, they are permitted, whereas a non-male individual cannot. Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) holds that discrimination against an employee on the basis of sex stereotyping (a person’s nonconformity to social or other expectations of that person’s gender) creates sex discrimination. Although the question before the Supreme Court was the standard of evidence required in sexual discrimination claims (preponderance of evidence), Justice Brennan explicitly stated in the majority opinion, “We are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group.” Revoking educator certificates on the basis of the stereotypical pronoun associated with their biological sex is precisely that.

The law also violates the Equal Protection Clause of the Fourteenth Amendment because whether teachers can tell students their particular pronouns depends on their sex. Sex discrimination is subject to intermediate scrutiny under the Fourteenth Amendment. HB 1069 must further an important government interest and must do so by means that are substantially related to that interest. Revoking educator certificates in the midst of a growing teacher shortage with no regard for a teacher’s performance at school does not have a legitimate interest. Although defendants may argue that kids need to be “de-indoctrinated,” this law hurts and confuses students. The transgender plaintiffs have obtained a court order legally changing their name. They have changed the sex on their birth certificates and have been referred to by unchanging pronouns for years. To now restrict students from calling teachers by those same pronouns does not serve an educational purpose. Thus, subsection 3 of HB 1069 unlawfully discriminates against plaintiffs on the basis of sex.

What the law does not do, however, is violate the First Amendment. Garcetti v. Ceballos held that a public employee is not entitled to First Amendment protection for speech made in the course of their regular duties as employees, even on matters of public concern. The issue in this case is a question of fact, whether the teachers’ pronoun usage was part of their regular duties.

The plaintiffs do not satisfactorily demonstrate that pronoun usage is outside of official duties. Although a teacher’s pronouns and name are a part of their personal identity, they are also how students engage with teachers. When a teacher identifies their name and pronouns, they are instructing students how to address them, which falls under the general category of instruction. Consider a hypothetical where a teacher instructs students to call them “bestie,” or requires students to refer to them by first name against district policy. Though a teacher could claim that these instructions do not relate to the academic duties of teaching, it is apparent that the manner of addressing an individual impacts the environment which all pedagogy, curriculum, and teaching exist within. This corroborates Evans-Marshall v. Board of Education of Tipp City Exempted School District, 624 F.3d 332, 342 (Cir, 2010), for the proposition that “speech occuring within a compulsory classroom setting does not constitute speech on a matter of public concern when it is instructional in nature, and Willey v. Sweetwater County School District. No. 1 Board of Trustees (2023), for the finding that pronouns are pursuant to official duties.

It is also incumbent to consider the policy implications of holding pronoun usage as a matter of private speech. Expanding the legal boundary of what is private speech in K-12 education increases the potential for teachers of any personal ideology to bring their beliefs into the classroom. In a time where bills restricting student pronoun choice are also being contested, ruling the preferred use of teacher’s pronouns as an unofficial duty sets the precedent for student’s preferred pronouns to be viewed similarly. This may limit the defense advocates have when teacher’s refuse to use student's preferred pronouns, as teachers can argue that they are not acting “within official duties.” This legal battle is being played out on both sides of the political spectrum. Courts must apply the law evenly, no matter the ideological alliance seeking relief.

Wood v. Florida Department of Education can be won by challenging the constitutionality of Subsection 3 under Title VII of the Civil Rights Act of 1964 and the Equal Protection Clause of the Fourteenth Amendment. Keeping the ruling as narrow as possible to prevent further weaponization of education policy for culture wars is essential. Teachers regain the ability to use their pronouns and the court upholds, rather than overturns, precedent.

Carly Noble is a senior at Brown University, concentrating in Education Studies with a certificate in Engaged Scholarship. She is a staff writer for the Brown Undergraduate Law Review and can be contacted at carly_noble@brown.edu.

Jack Tajmajer is a senior at Brown University, double concentrating in Political Science and Economics. He is an editor for the Brown Undergraduate Law Review and can be contacted at jack_tajmajer@brown.edu.