Iowa Law Requiring Parental Notification as to Accommodations “Intended to Affirm [Public School] Student’s Gender Identity” Upheld

From Iowa Safe Schools v. Reynolds, decided today by Eighth Circuit Judge Ralph Erickson, joined by Judges Lavenski Smith and Jonathan Kobes:

Iowa Code § 279.78(3) provides: “If a student enrolled in a school district requests an accommodation that is intended to affirm the student’s gender identity from a licensed practitioner employed by the school district, including a request that the licensed practitioner address the student using a name or pronoun that is different than the name or pronoun assigned to the student in the school district’s registration forms or records, the licensed practitioner shall report the student’s request to the administrator employed by the school district, and the administrator shall report the student’s request to the student’s parent or guardian.” …

The district court found part of the statute was unambiguous and another part unconstitutionally vague. The court found the notice provision is unambiguously triggered if a student requests use of a pronoun different than the pronoun assigned to the student in the school district’s registration forms or records.

In contrast, the district court concluded that the provision “accommodation that is intended to affirm the student’s gender identity” is impermissibly vague because the term “accommodation” has a broad meaning and, without being defined, can lead to unpredictable interpretations and create a substantial risk of arbitrary enforcement. The district court found neither Merriam-Webster’s Collegiate Dictionary nor other resources helpful in determining the meaning of “accommodation.” The court concluded “accommodation” is a “capacious concept” and severed what it found to be an unconstitutional portion of the statute.

{[Bu t]he examples provided by the district court in an effort to demonstrate overbreadth—such as a female asking to sit with boys at lunch, or a male choosing a pink pencil, or a male choosing to write reports about female historical figures—are not on their face student requests to change or modify gender identity.}

{[T]he Supreme Court has given two reasons a state statute may be found unconstitutionally vague: (1) if it “fails to provide people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits,” or (2) it “authorizes or even encourages arbitrary and discriminatory enforcement.” “Condemned to the use of words, we can never expect mathematical certainty from our language.” The Constitution does not require meticulous specificity.} “Flexibility and reasonable breadth are acceptable as long as it is clear when the rule as a whole prohibits.” …

If the enactment does not impose criminal penalties, due process requires less specificity—and even less specificity is required for public school disciplinary rules. If the First Amendment is implicated, this Court has explained that while a lesser standard of scrutiny is applied in public school settings, the vagueness doctrine demands a proportionately greater degree of specificity when the law reaches the exercise of free speech.

The Iowa legislature’s failure to define the term “accommodation” does not automatically render the statute impermissibly vague. The term “accommodation” is used and undefined in several federal statutes that have existed for decades.

When a statutory term is undefined, courts are to consider the word’s common and ordinary meaning, taking into account the context in which the undefined term is used. The ordinary and common understanding of “accommodation” in the context of this statute is straightforward—it applies if a student requests to change, adapt, or modify an aspect of their gender identity. {The law is clear enough that a person of ordinary intelligence can reasonably understand it. The district court erred when it found otherwise.} …

If an actual dispute arises over whether a gender identity related accommodation was requested or granted without notifying the student’s parents, an as-applied challenge is available. Plaintiffs elected not to make any as-applied challenges and instead sought injunctive relief only on their facial challenge….