Plaintiffs Puck Carlson (left) and Berry Stevens (right) in photos provided by the ACLU of Iowa and Lambda Legal

Iowa Republican lawmakers and Governor Kim Reynolds enacted several laws this year that discriminate against LGBTQ people. This week, seven Iowa families and the advocacy group Iowa Safe Schools filed the first lawsuit challenging one of those statutes: the wide-ranging education bill known as Senate File 496.

The plaintiffs, who include eight LGBTQ students attending public elementary, middle, or high schools across Iowa, have laid out a compelling case that SF 496 violates LGBTQ students’ First Amendment and Fourteenth Amendment rights in several ways, as well as the federal Equal Access Act.

Here is the full complaint that the ACLU of Iowa and Lambda Legal filed on behalf of the plaintiffs in the U.S. District Court for the Southern District of Iowa. (Disclosure: I was one of the plaintiffs in an open records suit the ACLU of Iowa filed in state court against Reynolds and the governor’s office. That case was settled in June 2023 and is unrelated to the litigation discussed here.)

Additional statements from some plaintiffs are here. The defendants are Reynolds, Iowa Department of Education Director McKenzie Snow, the Iowa State Board of Education, and officials from five public school districts.

SCOPE AND TIMING OF CHALLENGE TO SF 496

The plaintiffs are seeking to block enforcement of SF 496 in its entirety, rather than asking the court to enjoin certain parts of the law. But the seven counts raised in the complaint focus mostly on four areas:

• The “don’t say gay or trans” provision, which bans school districts from providing “any program, curriculum, test, survey, questionnaire, promotion, or instruction relating to gender identity or sexual orientation to students in kindergarten through grade six”;
• The “all-ages ban,” which requires “age-appropriate” education and stipulates that age-appropriate materials at any grade level cannot include “any material with descriptions or visual depictions of a sex act”;
• “Book ban provisions,” which prohibit materials depicting sex acts for all grade levels, “ban books relating to gender identity or sexual orientation” from libraries in schools that have kindergarten through sixth grade, “facilitate anonymous complaints by parents requesting the removal of material from classrooms and libraries,” and allow employees to be disciplined for violating the library ban; and
• The “forced outing provision,” which “requires school officials to notify a student’s parent or guardian whenever a student asks school officials to respect the student’s gender identity.”

Why was the lawsuit filed six months after Reynolds signed SF 496 and nearly five months after most of the law took effect on July 1?

Attorneys from the ACLU of Iowa and Lambda Legal did not discuss the timing during a November 28 news conference, but the petition cites at length the Iowa State Board of Education’s proposed administrative rules, which were published on November 15.

Another factor: several of the named defendants are newly-elected school board members, just sworn in this week. So filing now saves the plaintiffs from having to amend the petition to name different officials from the Iowa City, Sioux City, Urbandale, Waterloo, or West Des Moines school districts.

The petition explains how the law has affected students generally, and cites many ways the law has prevented individual plaintiffs from engaging in speech, expression, or association, or made them targets for bullying and harassment.

Taking each of the constitutional claims in order:

COUNT I: VIOLATING THE FIRST AMENDMENT RIGHT TO RECEIVE INFORMATION

As ACLU of Iowa attorney Thomas Story put it during the November 28 news conference, “The First Amendment does not allow our state or our schools to remove books or issue blanket bans on discussion and materials simply because a group of politicians or parents find them offensive.”

The plaintiffs assert in the court filing, “A student’s constitutional right to receive information is violated when library materials are removed for a purpose not reasonably related to a legitimate pedagogical concern.”

By banning “any material with descriptions or visual depictions of a sex act” from all school libraries and banning materials “relating to gender identity or sexual orientation” from libraries in schools that cover grades K-6, Iowa’s law censors “messages of inclusion, affirmation, and support with respect to students’ LGBTQ+ sexual orientation and gender identity based on content and viewpoint.”

On its face, the law restricts materials “based upon the content of these books, the message they mean to convey, and the ideas and subject matter expressed therein.” Moreover, the law “was enacted with the intent to and has been applied to remove books by LGBTQ+ authors expressing messages of inclusion, affirmation, and support for LGBTQ+ students and persons, as the legislative history, implementation, and impact of SF 496 reveals.”

Laws that restrict speech or expression based on content are subject to “strict scrutiny,” the most difficult bar for the government to clear in litigation. The state would need to establish that the book ban language is “necessary to serve a compelling state interest” and “narrowly tailored” (uses the least restrictive means) to accomplish that goal.

Nothing is ever a sure thing in court, but I don’t know how the state could show SF 496 doesn’t restrict materials based on content. It will also be extremely difficult to show the law is narrowly tailored, when so many books—including some works of classic literature—have been caught up in the ban on “descriptions or visual depictions of a sex act.” Various school districts have interpreted that language differently, and the state refused to provide a master list of books that school libraries cannot make available.

The law does not define “descriptions” or “visual depictions,” and the Board of Education’s draft administrative rules are no help: “A reference or mention of a sex act in a way that does not describe or visually depict a sex act as defined in that section is not included in the previous sentence.” When does a “reference” or “mention of a sex act” become a “description”?

COUNT II: VIOLATING FIRST AMENDMENT RIGHTS OF SPEECH AND EXPRESSION

The plaintiffs argue,

Discrimination against speech based on its content and viewpoint is a violation of the First Amendment. Efforts to suppress speech based on the government’s opposition to the speaker’s views or beliefs are unconstitutional absent narrow tailoring in service of a compelling justification. […]

By design, the don’t say gay or trans provision, the all-ages ban, the book ban provisions, and the forced outing provisions of SF 496 are meant to suppress speech on the basis of viewpoint and content.

The court filing and accompanying exhibits show how various plaintiffs have censored themselves because of the law, or have been unable to associate with like-minded peers as their school districts limit the activities of Gender-Sexuality Alliances known as GSAs.

I don’t know how the state could credibly claim these restrictions are not based on viewpoint and content. The “don’t say gay or trans” provisions expressly forbid instruction related to gender identity or sexual orientation in grades K-6. The administrative rules interpreting that part of the law read in part: “In monitoring and enforcing this subrule, the department will not conclude that a neutral statement regarding sexual orientation or gender identity violates section 279.80 or this subrule.”

Allowing “neutral” statements about a topic but not other kinds of expression is a textbook example of a content-based regulation. Again, from the court filing:

Far from clarifying the statute, this proposed rule prompts further questions and highlights and doubles down on the impermissibly content-based and viewpoint-based nature of SF 496’s prohibitions. For example, what qualifies as a neutral statement about sexual orientation or gender identity? Would a GSA advisor violate the rule if she allowed sixth grade GSA members to meet to discuss the need for greater LGBTQ+ civil rights, but comply if students instead mentioned their sexual orientations incidentally while introducing themselves and discussed the lunch menu? Does a book in a fourth-grade classroom violate the rule if it portrays a child’s same-sex parents as loving and attentive, but comply if the reference to gay parents is merely an aside?

What “compelling government interest” could justify restricting free expression so broadly? The petition notes that SF 496 doesn’t only affect what students can say:

Furthermore, SF 496 chills and precludes teachers and school officials from answering students’ questions about the sexual orientation, family structure, and/or gender identity of Plaintiff Students in the same way that teachers and school officials would answer questions about non-LGBTQ+ students or their families. SF 496 chills and precludes teachers and school officials from intervening to explain that these Plaintiffs and their families are as worthy as any others and that LGBTQ+ students are not inherently vulgar, promiscuous, or obscene. SF 496 reinforces dangerous and harmful beliefs that Plaintiff Students are shameful or “inappropriate” for discussion in a school context, but that cisgender and straight children and families are not.

COUNT III: VIOLATING FIRST AMENDMENT RIGHTS OF ASSOCIATION

This claim is simple: “On its face and as applied, the don’t say gay or trans provision, the all-ages ban, and the forced outing provision of SF 496 violate the rights of Plaintiff Student GSA members, members of Plaintiff IOWA SAFE SCHOOLS’ GSA network, and other students to freedom of expressive association under the First Amendment to the Constitution.”

Among the many kinds of support Iowa Safe Schools provides to students and educators, the nonprofit has worked with more than 100 GSAs involving some 4,000 students across the state. According to a declaration submitted by Iowa Safe Schools executive director Becky Tayler,

SF 496 has prompted many school administrators to restrict the activities of member GSAs or otherwise treat them differently from other student-led groups. Schools require student groups like GSAs to be sponsored by a faculty advisor, who facilitates and supports the group’s activities, and, in the case of GSAs in the Network, works with ISS to provide opportunities for student members and gather additional support. Some GSA advisors have reported being instructed to take a step back from the GSA, only being permitted to sit in the room but not provide any guidance like an educator might for other student-led groups. A few advisors for member GSAs have said that their administrators have told them to not discuss any part of the legislation with their students. Advisors have reported confusion on whether students need to sign permission slips to join GSAs (even though no other club requires this).

Due to SF 496, school administrators have been reluctant to allow student GSAs to interact with younger students in the district, reasoning it may constitute “promotion” in violation of the law. Advisors have reported their GSA has been prohibited from displaying signs or promoting the club in classrooms or hallways where students younger than seventh graders may be present, even in schools with mixed populations that include eighth or ninth graders, and even though other noncurricular clubs are not subject to those restrictions.

Tayler said “many GSAs have gone inactive this year,” and in other school districts, many students are now afraid to attend GSA meetings because of the law’s forced outing provision.

Several student plaintiffs submitted declarations about how this aspect of the law has affected them personally. Robert Smith (a pseudonym for a junior high school student in West Des Moines), said in his declaration that his school’s GSA can no longer meet because

There was no adult willing to take the risk under the new law. Now there isn’t a safe place for kids like me and our ally friends to come together and support each other to feel accepted. Even before that, some of my peers were afraid to join this year because they feared the teacher/administrator leader would report them to non-supportive family members.

COUNT IV: “VOID FOR VAGUENESS UNDER FIRST AND FOURTEENTH AMENDMENT”

The plaintiffs assert, “Under the Fourteenth Amendment, a governmental enactment like SF 496 is unconstitutionally vague if it fails to provide a person of ordinary intelligence fair notice of what is prohibited, or if it is so standardless that it authorizes or encourages seriously discriminatory enforcement.”

The law fails “to provide clear boundaries on the materials prohibited from educational and library programs,” does not specify what kind of speech is prohibited by the “don’t say gay or trans” provision, and does not define which student “requests” for an “accommodation” would trigger the forced outing to parents or guardians.

For all of those reasons,

Plaintiff Students do not know which of their activities, speech, or expression are prohibited by SF 496 and are justifiably fearful of engaging in any speech or conduct that Defendant School Districts could penalize. Plaintiff Students self-censor as a result. […]

Despite SF 496’s vagueness, it includes a range of penalties for schools and employees who fail to comply and mandates an anonymous complaint procedure to report alleged noncompliance. Plaintiffs are justifiably fearful of engaging in any speech or conduct that could be considered a violation of SF 496, or result in complaints or penalties for school employees.

The Board of Education’s proposed rules won’t help the state demonstrate the law is not vague.

COUNT V: “OVERBREADTH IN VIOLATION OF FIRST AMENDMENT”

The plaintiffs assert SF 496 “is impermissibly overbroad on its face in violation of the First Amendment because it punishes a substantial and disproportionate amount of protected First Amendment activity in relation to its purported legitimate sweep.” For example, due to the don’t say gay or trans provision, many school districts have removed “messages of support and affirmation for LGBTQ+ students, in addition to children’s books featuring real or fictitious LGBTQ+ characters.”

School districts have also implemented the all-ages book ban in an inconsistent way. Only thirteen books were removed from libraries in all three of the following school districts: Urbandale, West Des Moines, and Iowa City. “By contrast, 90 books have been banned in one of these districts but not the other two.”

COUNT VI: EQUAL PROTECTION VIOLATION UNDER THE FOURTEENTH AMENDMENT

This claim is straightforward: “SF 496 violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution by discriminating against Plaintiff Students and other LGBTQ+ students based on sex, sexual orientation, gender identity, and transgender status, both facially and as applied.”

The petition cites details from the Iowa House and Senate debates to show that “Discrimination against LGBTQ+ students was a motivating factor behind the passage of SF 496. The law bears more heavily on LGBTQ+ students than on straight or cisgender students, and the history, context, and process of its passage illustrate its discriminatory motives.”

When a law draws a distinction on the basis of sex, courts typically apply a legal test known as “intermediate scrutiny.” The government needs to show the policy serves an “important government interest” (not the “compelling state interest” used for the strict scrutiny standard), and uses “means that are substantially related to that interest.”

The plaintiffs argue, “Discrimination based on sex, sexual orientation, gender identity, and transgender status each warrant at least heightened scrutiny,” adding that “SF 496 does not serve any legitimate purpose, pedagogical or otherwise, let alone the exceedingly persuasive or compelling one required, and is instead rooted in animus toward and moral disapproval of LGBTQ+ people.”

COUNT VII: VIOLATION OF THE EQUAL ACCESS ACT

This claim relates to a federal law, not the U.S. Constitution, and stems from the limits on GSAs in schools that several of the plaintiffs attend.

The Equal Access Act requires that schools receiving federal financial assistance provide equal access to student organizations. However, “The don’t say gay or trans provision, all-ages ban, and forced outing provisions of SF 496, on their face and as applied, deny equal access or a fair opportunity to GSAs.”

The same parts of the law “also discriminate against GSAs on the basis of the religious, political, philosophical, or other content of the speech at their meetings.”

SUIT ASKS THE COURT TO BLOCK ENTIRE LAW

In addition to the petition seeking to permanently block enforcement of SF 496, the plaintiffs filed a separate motion for a preliminary injunction, which would prevent the state and school districts from enforcing any part of the law while litigation proceeds.

The U.S. District Court won’t block enforcement of a law unless the plaintiffs can satisfy four conditions that the Eighth Circuit Court of Appeals outlined in a 1981 case known as Dataphase.

First, plaintiffs must show they are likely to succeed on the merits. The brief supporting the motion for an injunction explains why plaintiffs are likely to succeed on their First Amendment, Fourteenth Amendment, and Equal Access claims. The court could block all or part of SF 496 if it found plaintiffs were likely to prevail on any constitutional claim.

Second, plaintiffs need to convince the court that they would continue to suffer “irreparable harm” if the law remains in effect.

Third, the plaintiffs argue, the government would not be harmed if the court enjoins SF 496, since “The State maintains the authority to prosecute the dissemination or exhibition of obscene material to minors.”

Finally, the motion asserts that blocking enforcement of the law would serve the public interest:

All Iowa schools benefit when students can express themselves and explore their identities. Iowa communities value diversity in thought and person. It is a disservice to Iowa students, and contrary to the goals of public education, to limit the freedom to learn and grow. There is no legitimate public interest in the suppression of statutory and First and Fourteenth Amendment rights.

GOVERNOR’S RESPONSE NOT ON POINT

The state has not yet filed any legal document defending SF 496. Shortly after the November 28 news conference announcing the lawsuit, the governor’s office issued a press release that misrepresented the law and didn’t address any of the relevant legal issues. Here it is in full:

Gov. Kim Reynolds released the following statement in response to the ACLU and Lambda Legal filing a lawsuit in regards to pornography in school libraries: 

“Protecting children from pornography and sexually explicit content shouldn’t be controversial. The real controversary [sic] is that it exists in elementary schools. Books with graphic depictions of sex acts have absolutely no place in our schools. If these books were movies, they’d be rated R. The media cannot even air or print excerpts from these books because the content is offensive and inappropriate, yet they promote the narrative that they’re good for kids.” 

The trouble is, SF 496 does not mention “pornography,” “sexually explicit content, or “graphic depictions of sex acts.” (Iowa House Republicans voted to add “graphic” to the definition of age-appropriate materials, but Senate Republicans removed that word from the final version of the bill.)

The law doesn’t employ anything like the rating system used to denote mature content in movies, nor does it use the Iowa Code definition of “obscenity,” which considers whether the material as a whole “lacks serious literary, scientific, political or artistic value.”

The governor’s spokesperson Kollin Crompton urged the Des Moines Register to publish images from Maia Kobabe’s memoir Gender Queer, a graphic novel which has some depictions of “sexual fantasies, including masturbation and simulated oral sex.” The book is among the most frequently banned in the U.S. and recently inspired an unsuccessful library referendum in Pella, Iowa.

Contrary to what Reynolds and her staff imply, dozens of books that Iowa school districts have pulled from the shelves since SF 496 took effect have no content that would be considered too explicit to print or broadcast. For example, the plaintiffs’ petition notes, some schools have removed Melissa by Alex Gino, an award-winning children’s book “which does not contain a ‘sex act’ and is banned solely for telling the story of a transgender girl.”

The governor didn’t acknowledge the many discriminatory provisions of the law she signed. While she may confuse some members of the public into thinking the case is solely about “graphic depictions of sex acts,” attorneys for the state will need to address the actual legal arguments.