IA: How Federal Judge Gets It Right, Blocks Don't Say Gay

At last, someone with authority gets it right.

Iowa has its own version of a Don't Say Gay law (complete with civics instruction and reading restrictions), and Senate File 496 has the same problem as others--so broad as to be meaningless and unenforceable.  And a federal judge just called them on it, and blocked portions of the law. 

Injunctions against the law had been filed by the GLBT Youth In Iowa Task Force and by Penguin Random House Books. The ruling came from U.S. District Court Judge Stephen Locher. Locher was made a U.S. magistrate judge in December of 2020, then recommended for the district court post by GOP Senators Charles Grassley and Joni Ernst in the beginning on 2022.

Locher blocked two provisions of the law. 

One adds to the definition of "age-appropriate:

“Age-appropriate” does not include any material with descriptions or visual depictions of a sex act as defined in section 702.17

That led to some great news headlines such as "What is a sex act in Iowa?" Turns out that 702.17 gives a fairly specific list. The bill does give special exemptions for human growth and development materials, and the Bible. 

As other states have seen, this definition is so very broad that everything from John Steinbeck to John Milton gets swept up. From Locher's ruling:

The law is incredibly broad and has resulted in the removal of hundreds of books from school libraries, including, among others, nonfiction history books, classic works of fiction, Pulitzer Prize winning contemporary novels, books that regularly appear on Advanced Placement exams, and even books designed to help students avoid being victimized by sexual assault. The sweeping restrictions in Senate File 496 are unlikely to satisfy the First Amendment under any standard of scrutiny and thus may not be enforced while the case is pending. Indeed, the Court has been unable to locate a single case upholding the constitutionality of a school library restriction even remotely similar to Senate File 496.

Locher also notes that the writers of the law had another option-- they could have chosen an "obscenity light" standard and simply used the already-existing law which criminalizes the dissemination and exhibition of “obscene material” to minors. For all the noise about protecting children from actual porn, the folks supporting this law wanted to cast a much broader net. In other words, the broad vagueness is a feature, not a bug, a vagueness born of intention, not error.

But even broader and worse were the Don't Say Gay portions of the law because, as many of us have noted repeatedly, they are written so broadly that they really mean Don't Say Anything About Any Gender Or Orientation At All Ever. From the law

A school district shall not provide any program, curriculum, test, survey, questionnaire, promotion, or  instruction relating to gender identity or sexual orientation to students in kindergarten through grade six.

Say it with me one more time: heterosexuality is a sexual identity, and traditional straightness is a gender identity (and Iowa law agrees) 

Locher points out that the law is written in neutral language that also makes no distinction between "cisgender or transgender identity or gay or straight relationships." So...

Meaning: on its face, the law forbids any programs, promotion, or instruction recognizing that anyone is male or female or in a relationship of any sort (gay or straight). The statute is therefore content-neutral but so wildly overbroad that every school district and elementary school teacher in the State has likely been violating it since the day the school year started.

Right. If you taught your first graders to use the boys or girls bathroom, you delivered instruction about gender identity. If you read any books that contained couples of any kind, you delivered instruction on sexual orientation. It is, as Locher says elsewhere in the injunction, "staggeringly broad."

Based on the neutral definitions of “gender identity” and “sexual orientation,” Senate File 496 unambiguously prohibits instruction relating to any gender identity (cisgender or transgender) and any sexual orientation (gay or straight)...

It follows that any teacher in grade six or below who incorporates gender identity or sexual orientation into the curriculum in any way has violated section 279.80. This would include, for example, teachers or other licensed professionals like the Educator Plaintiffs who make books available to students that refer to any character’s gender or sexual orientation; which is to say, virtually every book ever written. Similarly, a math teacher will have violated the law by requiring students to take an exam stating that Sally bought eight apples and ate three and asking how many “she” has left. This is a forbidden “test . . . relating to gender identity.”

Exactly. While some on either side of these suits say his examples are "absurd," Locher repeatedly points out that the language says what it says and can't be interpreted "according to stray comments by individual legislators." 

Locher notes that the state's defense doesn't address this issue, but "their briefing and argument leave the unmistakable impression that they believe the law only forbids programs, promotion, and instruction relating to transgender people and non-heteronormative relationships." Locher gets into this in depth, but really, his wry heading for the section says it all:

The State Defendants’ Promise to Only Enforce the Law in a Discriminatory Fashion Does Not Solve the Constitutional Problem.

Locher also notes, when discussing standing, that one elementary student who was part of the suit would be forbidden to join a student organization formed to support LGBTQ students, which would interfere with that student's First Amendment right to free speech in the form of freedom of expressive association.

All of this should be equal reason to strike down a host of similar bills in other states. 

Iowa Governor Kim Reynolds is sad, and also clueless. “Instruction on gender identity and sexual orientation has no place in kindergarten through sixth-grade classrooms,” Reynolds said, using the exact same language that got the law in trouble with Locher in the first place. "The real debate should be about why society is so intent on over-sexualizing our young children. It’s wrong, and I will continue to do my part to protect their innocence.”

Attorney General Brenna Bird had more of the same. "Sexually explicit books do not belong in our elementary-school libraries or classrooms. Not only is it common sense, it’s the law. As attorney general, I will keep on fighting to protect families, enforce the law and keep inappropriate books out of the hands of children in school.”

Whether it's a rhetorical trick or just sloppiness, both demonstrate the way that reading restrictionists insist on conflating a variety of issues and treating a wide variety of books as if they are all the same thing. Courts should have been calling out these laws in all states where they've cropped up, but at least Iowa has slowed them down a bit. It's not a perfect judgement; Locher left Iowa's mandatory outing law in place. 

But this was a heck of a step in the right direction, a win in Iowa for the First Amendment.

Will the tide shift in Iowa? Who knows. But Iowa is one more state in which the Moms for Liberty electioneering bus seems to have lost some steam and their legislative priorities are just a shade less anti-First Amendment than they used to be. DEI is still on the M4L chopping block, but not Naughty Books and-- wait! what? Eliminate Common Core? 

Expect the legislature to attempt to retool the law so that it can clear judicial hurdles. People who have decided they want to render books and LGBTQ persons invisible do not give up quickly or easily. At least in Iowa they'll have to go back to the drawing board.