UPDATE: Attorney General Brenna Bird filed notice of appeal to the Eighth Circuit on January 12. Original post follows.

The state of Iowa cannot enforce key parts of a new law that sought to ban books depicting sex acts from schools and prohibit instruction “relating to gender identity and sexual orientation” from kindergarten through sixth grade.

U.S. District Court Judge Stephen Locher issued a preliminary injunction on December 29, putting what he called “staggeringly broad” provisions on hold while two federal lawsuits challenging Senate File 496 proceed. The judge found the book bans “unlikely to satisfy the First Amendment under any standard of scrutiny,” and the teaching restrictions “void for vagueness under the due process clause of the Fourteenth Amendment.”

However, the state may continue to enforce a provision requiring school administrators to inform parents or guardians if a student seeks an “accommodation that is intended to affirm the student’s gender identity.” Judge Locher found the LGBTQ students who are plaintiffs in one case lack standing to challenge that provision, since “they are all already ‘out’ to their families and therefore not affected in a concrete way” by it.

Governor Kim Reynolds and Attorney General Brenna Bird quickly criticized the court’s decision. But neither engaged with the legal issues at hand.

RULING ISSUED BEFORE ENFORCEMENT DEADLINE

Friday’s order was not a final decision on whether SF 496 is constitutional. At this stage, the judge was considering only whether the law’s restrictions would remain in effect while the litigation was ongoing.

Here’s the full text of Judge Locher’s order on the requests for preliminary injunction in two federal cases: one filed by LGBTQ student plaintiffs and Iowa Safe Schools, and one filed by the book publisher Penguin Random House, four authors of books that some schools have removed from some libraries, three educators, a high school student, and the Iowa State Education Association (the state’s largest teachers union).

The LGBTQ plaintiffs were seeking to block SF 496 in its entirety, with a focus on provisions banning “any material with descriptions or visual depictions of a sex act” from school libraries and classrooms, teaching restrictions commonly known as “don’t say gay or trans,” and the forced outing of students who want to use different names or pronouns at school.

The plaintiffs in the Penguin Random House lawsuit were seeking to block the book bans and LGBTQ content restrictions insofar as they affected school library books, but were not challenging restrictions on curriculum or other parts of the wide-ranging education law.

The District Court did not consolidate the cases, but held a single hearing on both motions for preliminary injunction on December 22 and issued a single order “in the interest of efficiency.” The timing was important because without the injunction, the state would have been able to punish educators for violating the book restrictions as of January 1.

“THE IOWA LEGISLATURE HAS USED A BULLDOZER”

The court’s order first explained why various groups of plaintiffs (book publisher, educators, authors, students, teachers union) have standing to challenge the ban on books depicting sex acts, then considered the proper standard of review. Judge Locher commented during the December 22 hearing that after reading “as many cases as I could find on book restrictions in school libraries as well as other Supreme Court cases involving First Amendment rights as it relates to free speech in schools,” his main takeaway was “the Supreme Court cannot decide what standard to apply to these challenges.”

The right to receive information

The order explains that the state needs to show a “substantial and reasonable governmental interest” underlying the book restrictions in order to justify limiting the students’ “First Amendment right to receive information in school libraries.”

To support that level of scrutiny, Judge Locher cited several cases, including one that appears directly on point. In Pratt v. Independent School District No. 831, the Eighth Circuit Court of Appeals held in 1982 that “to avoid a finding that it acted unconstitutionally, the board must establish that a substantial and reasonable governmental interest exists for interfering with the students’ right to receive information.”

In addition, the Eighth Circuit panel found in Pratt, “At the very least, the First Amendment precludes local authorities from imposing a ‘pall of orthodoxy’ on classroom instruction which implicates the state in the propagation of a particular religious or ideological viewpoint.”

The right to speak about certain topics

A “somewhat higher” level of scrutiny would apply as the court considers whether SF 496 is overbroad, since the ban on books that depict sex acts implicates the “affirmative First Amendment free speech rights” of Penguin Random House, the authors, and students.

The judge reached that conclusion in part because many other cases have stemmed from “the removal of a small number of books or materials by a local school board,” whereas SF 496 is a state law enacted “because local school boards would not remove books from school libraries.” The law has already led school districts to pull hundreds of titles from the shelves, including classic works of literature, award-winning novels, and nonfiction books about major historical events.

The court could not find “a single case upholding school library restrictions as broad as those set forth in Senate File 496. In essence, the Iowa Legislature has used a bulldozer where school boards in prior cases merely employed a scalpel.”

For that reason, Judge Locher endorsed “a sort of ‘obscenity-light’ standard for minors that must be considered when a legislature enacts a law with sweeping implications on the ability of minors to access books or other materials.” A key component of obscenity standards is considering whether the material being removed has “serious literary, artistic, political, or scientific value,” when considered as a whole.

Attorneys for the state had argued that school library collections are “government speech,” and therefore regulations of library books do not implicate the First Amendment. The judge rejected that idea for several reasons, explained on pages 31 through 33 of the order.

Due process rights

Finally, “the Educator Plaintiffs have the Fourteenth Amendment due process right to be free from laws that are so vague that a person of ordinary intelligence does not have fair notice of what is prohibited.” Teachers or librarians need to know how to comply with SF 496, because under the law they could lose their licenses and careers for providing material to students that isn’t “age-appropriate.”

BOOK RESTRICTIONS HAVE “A STAGGERINGLY BROAD SCOPE”

Courts issue preliminary injunctions only if plaintiffs can show they are likely to succeed on the merits of their constitutional claims. Judge Locher found the “sweeping restrictions” on school library books “are unlikely to satisfy the First Amendment under any standard of scrutiny.”

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.

Violating students’ right to receive information

SF 496 mandates that only “age-appropriate” materials may be in school libraries and classrooms. The court determined,

There very well may be individual books that the Iowa Legislature (or a local school board) could remove from school libraries without running afoul of the First Amendment due to the book’s level of vulgarity and the potential for access by younger students. […] The problem here, however, is that Senate File 496 makes no attempt to target such books in any reasonable way. Instead, it requires the wholesale removal of every book containing a description or visual depiction of a “sex act,” regardless of context. The underlying message is that there is no redeeming value to any such book even if it is a work of history, self-help guide, award-winning novel, or other piece of serious literature.

In effect, the court found, “the Legislature has imposed a puritanical ‘pall of orthodoxy’ over school libraries,” which is “impermissible” under Pratt and other precedents.

While excluding all books describing sex acts “may seem viewpoint-neutral” since it is not targeting a political ideology, “it is nonetheless content-specific in the sense of communicating that no book with a description or visual depiction of a sex act is appropriate for minors, regardless of educational or literary value.” Republican lawmakers exempted the Bible and other religious texts from SF 496, and Judge Locher found that “makes the problem even worse, as it communicates that religious books with descriptions of sex acts have value after all, while all others do not.”

The state “presented no evidence that student access to books depicting sex acts was creating any significant problems in the school setting, much less to the degree that would give rise to a ‘substantial and reasonable governmental interest’ justifying across-the- board removal.” At most the state “presented evidence that some parents found the content of a small handful of books to be objectionable.”

Overbroad in limiting the First Amendment

Judge Locher determined, “The law has a staggeringly broad scope.” Even the dictionary and Iowa Code could be prohibited—the dictionary for containing a definition of sexual intercourse, and the code because it spells out what constitutes a sex act (e.g. “Penetration of the penis into the vagina or anus”).

SF 496 does not consider “a book’s political, artistic, literary, or scientific value,” or the “age of students who might have access to the book.” The law treats 17-year-old student plaintiff Hailie Bonz, who can legally consent to sex in Iowa, “the same as a five-year-old in kindergarten” when it comes to access to books.

The Iowa legislature could have adopted an “obscenity-light” standard, the court’s order noted. Instead, legislators approved “a sweeping law leading to the removal of hundreds of works, including history books, Pulitzer Prize winning novels, self-help guides for how to avoid being victimized by sexual assault, and historical classics like Ulysses.”

Assistant Attorney General Daniel Johnston argued during the December 22 hearing that some school districts were interpreting the law too broadly, removing books that merely referred to sex acts rather than describing them. But as the court interpreted “the plain language of Senate File 496, Iowa school districts are not going far enough in removing books.”

Johnston began his remarks in court by stating, “Books with graphic illustrations of people performing oral sex on each other are circulating in Iowa schools, and before Senate File 496, schools were refusing to remove them.” The state also offered declarations from parents, who cited sexually explicit passages or illustrations in a few books, such as Gender Queer by Maia Kobabe. Judge Locher held, “But Senate File 496 did not merely remove one book from school libraries; it removed hundreds. Thus, the fact that one book—or even a small handful—arguably could have been removed without violating the First Amendment does not sustain the law against an overbreadth challenge.”

Book bans void for vagueness

The Iowa Department of Education declined to provide a master list of books that should be removed under SF 496, and school districts have not interpreted the law in any consistent way. Many books have been pulled from some libraries but not others. The judge noted, “One of the major areas of uncertainty is the level of detail a book passage must have before it constitutes a description or visual depiction of a sex act; for example, is a passage stating that two characters ‘made passionate love’ or ‘had sexual intercourse’ enough to require removal?”

By way of example, the court’s order quoted from Last Night at the Telegraph Club, a novel by plaintiff Malinda Lo. Some people might consider the passage to describe a sex act, while other reasonable observers might say it merely implied sexual contact between two characters.

This places school districts and licensed professionals like the Educator Plaintiffs in the untenable position of having to decide whether to remove Last Night at the Telegraph Club from the school library—thereby interfering with the First Amendment rights of students—or leaving it on the shelves and facing potential discipline, up to and including termination. By forcing them into this predicament, Senate File 496 likely violates the due process clause.

For all of those reasons, the court enjoined the state from enforcing the book restrictions. While these lawsuits proceed, state entities cannot punish educators or school districts for making books available to students in libraries or classrooms.

K-6 TEACHING RESTRICTIONS AMOUNT TO “DON’T SAY ANYTHING”

Next, the court turned to the section of SF 496 that reads, “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.” Most of the LGBTQ plaintiffs don’t have standing here, the court found, because they are beyond sixth grade. But one is a fourth-grader and directly affected. One of the educator plaintiffs also has standing, because he teaches sixth-graders.

Judge Locher’s remarks during the December 22 hearing suggested he didn’t read this provision to target expressions of LGBTQ identity or orientation: “It’s one of the most bizarre laws I’ve ever read in my life, but it is content neutral.”

Indeed, the court order argued opponents of SF 496 (including the LGBTQ plaintiffs) were wrong to refer to the law as “don’t say gay” or “don’t say trans.”

Based on the plain language of the statute, this is not an accurate description. It is actually a “don’t say anything” bill. On its face, it prohibits school districts and teachers from providing any program, promotion, and instruction that relates to gender identity (cisgender or transgender) or sexual orientation (gay, straight, or otherwise) in any way.

The order gives many examples of routine school activities that would be prohibited as programs or instruction related to gender identity: referring to elementary school students as “boys” or “girls,” offering sex-segregated bathrooms or sports teams, instructing students to call a teacher “Mr. _______” or “Miss ______,” identifying historical figures as male or female.

As for sexual orientation, Judge Locher reads SF 496 to prohibit a teacher from mentioning their spouse in class, “as this would reveal the teachers’ sexual orientation.”

Anyone who watched the Iowa House and Senate committee meetings or floor debates on this legislation knows the majority party’s goal was to cut off classroom discussions about LGBTQ people and topics. Judge Locher acknowledged that fact.

The Court understands, of course, that this is likely not what the Iowa Legislature was trying to accomplish when it passed Senate File 496. Indeed, the State Defendants2 and GLBT Youth Plaintiffs alike characterize this interpretation of the law as “absurd,” and both argue—for different reasons—that the law is designed to prohibit discussion of homosexuality and transgenderism. (The Penguin House Plaintiffs, by contrast, correctly interpret the plain language of the law.) The problem, however, is that the Court cannot interpret Senate File 496 as targeting transgender identities and homosexual relationships without substituting the Court’s own choice of words for the ones chosen by the Legislature. This the Court cannot do.

Why not?

“ANALYSIS MUST FOCUS SQUARELY ON THE STATUTORY LANGUAGE”

When interpreting a law, some judges consider what legislators intended. But many conservative jurists have championed a “textualist” approach, which looks only at the plain language of the statute. As the late U.S. Supreme Court Justice Antonin Scalia argued, it is “simply incompatible with democratic government, or indeed, even with fair government, to have the meaning of a law determined by what the lawgiver meant, rather than by what the lawgiver promulgated.”

Applying that approach, Judge Locher doesn’t see the K-6 restrictions in SF 496 as “ambiguous.” But he does “find the language to be 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).”

So elementary school teachers could violate the law if their curriculum includes any book referring to “any character’s gender or sexual orientation; which is to say, virtually every book ever written.” A math problem referring to a person as “she” could be construed as a “test . . . relating to gender identity.”

Although attorneys for one group of plaintiffs and the state rejected that interpretation in briefs filed and arguments in court on December 22,

Neither the GLBT Youth Plaintiffs or State Defendants, however, offer any alternative interpretation of the law that actually takes into account the statutory language. The GLBT Youth Plaintiffs instead rely on isolated statements by legislators to argue that the law targets gay and transgender students, while the State Defendants make no meaningful attempt to wrestle with the neutral definitions of “gender identity” and “sexual orientation” at all.

The Court is not at liberty to interpret Senate File 496 according to stray comments by individual legislators. Nor may the Court apply its own subjective judgment, divorced from the statutory text, about what the Legislature was probably trying to accomplish. Instead, the analysis must focus squarely on the statutory language.

The upshot is, “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.”

As such, SF 496 is “void for vagueness under the due process clause of the Fourteenth Amendment because the State will have unfettered discretion to decide when to enforce it and against whom, thus making it all but impossible for a reasonable person to know what will and will not lead to punishment.”

STATE’S POSITION “REINFORCES THE CONSTITUTIONAL PROBLEMS”

The state’s legal arguments suggest “they believe the law only forbids programs, promotion, and instruction relating to transgender people and non-heteronormative relationships.” Johnston implied during the hearing that an elementary school teacher could read a book to the class involving straight characters, and could allow a student to select a library book containing LGBTQ characters. But the teacher couldn’t read a book with LGBTQ characters to the whole class as part of the curriculum, because that would be “compulsory” instruction about sexual orientation or gender identity in grades K-6.

This idea doesn’t get the state out of the jam. Judge Locher explained,

Because this position is inconsistent with the plain language of the statute, it is not terribly relevant to the Court’s analysis except in one sense: it confirms that the most likely enforcement of Senate File 496 will be against teachers and students who want to discuss same-sex relationships or transgenderism. This adds a new layer to the constitutional problems described above because it inhibits the ability of students to “express beliefs that others might find disagreeable or offensive.”

The First Amendment probably would not permit the government “to allow students to discuss heterosexual relationships or cisgender people as much as they wish but cut off any discussion of same sex relationships or transgender people.” For that reason, “The State Defendants’ putative interpretation of the statute therefore reinforces the constitutional problems, rather than resolving them.”

TOP REPUBLICANS MISREPRESENT LAW, COURT’S FINDINGS

Reynolds and Bird provided a master class in misdirection soon after the District Court published its order on December 29. The governor said in a written statement,

I’m extremely disappointed in today’s ruling. Instruction on gender identity and sexual orientation has no place in kindergarten through sixth grade classrooms. And there should be no question that books containing sexually explicit content — as clearly defined in Iowa law — do not belong in a school library for children. The fact that we’re even arguing these issues is ridiculous. 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.”

Reynolds wants Iowans to believe SF 496 bans teaching about LGBTQ topics in grades K-6. Clearly that was her intention. But Judge Locher spent pages explaining why the law actually “prohibits instruction relating to any gender identity (cisgender or transgender) and any sexual orientation (gay or straight),” full stop.

No matter how many times Republicans repeat the talking point, the law doesn’t target “sexually explicit content.” If it did, it might be constitutional under an “obscenity-light” standard that considers the value of contested books as a whole.

It’s never “ridiculous” to consider whether government went too far in limiting fundamental constitutional rights. And refusing to acknowledge LGBTQ people exist does not protect any child’s “innocence.”

A statement from Bird echoed the governor: “I am deeply disappointed in the district court’s decision today. 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.”

Bleeding Heartland has asked whether the state intends to appeal the preliminary injunction to the Eighth Circuit Court of Appeals. This post will be updated as needed, if staff for the governor or attorney general respond.

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P.S.—The conservative website The Iowa Standard noted with disapproval that U.S. Senators Chuck Grassley and Joni Ernst had recommended Locher for the judgeship before President Joe Biden nominated him in 2022. Grassley helped Locher move quickly through the confirmation process and hailed his unanimous confirmation, saying he “will be an excellent addition to the federal bench.”

The Republican senators had every reason to expect good things. A “Judicial Selection Commission” appointed by Grassley and Ernst unanimously recommended Locher after interviewing many candidates for the District Court vacancy. Early in his legal career, Locher clerked for Judge John Gibson, a Reagan appointee to the Eighth Circuit.

The Iowa Standard doesn’t refute any of Locher’s legal reasoning. The fact is, nothing in the December 29 order goes against conservative principles of statutory interpretation. A judge’s job is to carefully examine statutes and relevant precedent, not to block controversial policies enacted by Democrats while upholding all Republican-backed laws.

UPDATE: In a January 12 news release announcing her appeal to the Eighth Circuit Court of Appeals, Bird kept up the pretense that SF 496 targeted “sexually explicit” materials.

When we send our kids to school, we trust that their innocence will be protected. I’m glad to say that we are today appealing the district court’s decision in order to uphold Iowa’s law that keeps sexually explicit books out of the hands of our kids in school. Iowa’s law is clear; sexually explicit books and materials have no place in our elementary school classrooms or libraries. As a mom, I share parents’ concerns and remain committed to keeping our schools a safe place for kids to learn and grow. With this appeal, we will continue the fight to protect Iowa families and to uphold Iowa’s law in Court.

Bird’s statement did not mention the teaching restrictions. I am seeking comment from the Attorney General’s office on whether the state will also ask the appeals court to uphold the limits on instruction “relating to gender identity and sexual orientation,” or will focus on the book bans.