Court Rejects Facial Challenge to Iowa Law Barring Public School K-6 Programming Related to “Gender Identity to Sexual Orientation”

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

[Iowa law] precludes a school district from providing instruction relating to gender identity or sexual orientation to students in kindergarten through grade six [the “Instruction Section”]…. [It also] requires school officials to notify parents if a student asks for the use of a pronoun that does not match the school’s registration records or requests an “accommodation that is intended to affirm the student’s gender identity” [the “Parental Notification Law”]….

Iowa Code § 279.80(2) provides: “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.” When enacted, the statute referred to the definition of gender identity as set forth in § 216.2(12), which defined gender identity as “a gender-related identity of a person, regardless of the person’s assigned sex at birth.” …

Iowa law defines gender identity as “an individual’s subjective identification as male, female, or neither male nor female … [and] shall not be considered a synonym or substitute for sex or gender.” Sexual orientation is defined under Iowa law as the “actual or perceived heterosexuality, homosexuality, or bisexuality.” …

In addressing Plaintiffs’ facial challenge, the district court concluded that all but two words in this statute—program and promotion—pass constitutional muster. The court found the words “program” and “promotion” are too broad to refer only to mandatory classroom curriculum and violate the First Amendment by prohibiting school districts and educators from, for example, making extracurricular activities relating to gender identity and sexual orientation available to students in grades six and below.

Throughout the litigation, the State has insisted that this statute applies only to mandatory parts of the educational curriculum. Reading the plain language, we cannot say the State’s assertion is wrong. The statute lists seven activities separated by commas. Read together, we think the plain language speaks clearly enough to apply to classroom curriculum.

Even so, the district court excised two of the words and found the only plausible way to interpret them as not viewpoint-based was to conclude that school districts are not allowed to provide any programs or promotion relating to any gender identity or any sexual orientation, which also would include “girls” sports teams and “boys” sports teams. The court further found that the State’s contention that this was a faulty interpretation “guarantees” that state officials will determine on an ad hoc and subjective basis which activities are permitted and which are not.

If Plaintiffs had pursued as-applied challenges and presented a developed record, it is remotely possible that the district court raised valid points. Because Plaintiffs forewent their as-applied challenges, we are left to determine only whether the district court’s facial injunction should be upheld….

Even if we were to assume the statute is susceptible to more than one construction in that it applies to extracurricular or other non-curricular activities, as the district court found, the canon of constitutional avoidance applies. This canon functions as a means of adopting a construction that avoids questions about its constitutionality. The canon of constitutional avoidance permits us to adopt the State’s interpretation and avoid the purported constitutional infirmities that are not apparent from the text of the statute.

The district court engaged in a flawed analysis when it isolated two words in the statute to create an expansive view of the law’s scope. Courts typically handle constitutional claims on a case-by-case basis, not en masse. And for good reason. A statute may only be invalidated under the First Amendment if its unconstitutional applications substantially outweigh the constitutional ones. “[F]acial challenges are hard to win.”

When the Plaintiffs elected to litigate the constitutionality of §279.80(2) solely as a facial challenge, they chose to carry the risk of having to show that unconstitutional applications substantially outweighed the constitutional applications. Because there is an inadequate showing to demonstrate the unconstitutional applications of Iowa Code § 279.80(2) substantially outweigh the constitutional ones, Plaintiffs cannot show a likelihood of success on the merits, and the entry of a preliminary injunction was improper.