A transgender woman who is a math teacher at a public high school in Florida may face penalties from the state for using her chosen pronouns in class, according to a decision by a federal court of appeals on Wednesday.

In the case named Wood v. Florida Dept. of Education, the 11th Circuit Court of Appeals decided that the teacher acted in her role as a government employee rather than a private individual when she referred to herself as “Ms.” and used the pronouns “she,” “her,” and “hers” while addressing her students.

In 2023, Florida enacted House Bill 1069, widely considered fellow traveler legislation to the Sunshine State”s “Don’t Say Gay” policies. Specifically, the bill targeted transgender identity expression.

The legislation bars public school teachers, employees, and contractors from providing to a student “his or her preferred personal title or pronouns if such preferred personal title or pronouns do not correspond to that person’s sex.” Violators are subject to punishment, including “revocation or suspension” of their “educator’s certificate” or “other penalties provided by law.”

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In the case in question, algebra teacher Katie Wood transitioned in 2020 and began identifying as a woman, using female pronouns.

“Importantly for present purposes, she wrote ‘Ms. Wood’ and ‘she/her’ on her classroom whiteboard and syllabi, she identified herself as ‘Ms. Wood’ in her communications with students, and she wore a pin that said ‘she/her,'” the court explains.

After the bill passed, Wood sued to enjoin its application, challenging its constitutionality under the First Amendment.

In April 2024, Wood won a preliminary injunction at the district court level from a judge highly skeptical of the law.

“Once again, the State of Florida has a First Amendment problem,” U.S. District Judge Mark Eaton Walker, a Barack Obama appointee, opined in a 60-page order. “Of late, it has happened so frequently, some might say you can set your clock by it.”

The narrow, preliminary victory paused enforcement of the law by finding Wood’s relevant speech was made as a private citizen.

“Considering the full context of Ms. Wood’s speech—particularly the personal, self-referential nature of the speech and the circumstances during which she engages in such speech in and out of the classroom—this Court concludes that Ms. Wood has carried her threshold burden to demonstrate that she is speaking as a citizen, and not pursuant to her official duties, when she provides her preferred title and pronouns to students. Her self-identifying speech, which effectively signals her personal identity as a woman, is independent from the speech she has been hired to provide.”

Not so, the appellate panel ruled.

“She cannot show, with respect to the expression at issue here, that she was speaking as a private citizen rather than a government employee,” the opinion reads.

The court quickly notes – in what it says is an important digression – that the only speech at issue is when Wood interacts with students. That’s because, the court says, the law in question is explicitly only about interactions with students. In dicta, the majority suggests Wood might be free to use her preferred pronouns when, for example, “conversing with colleagues in the faculty lounge.”

The majority reasoned that remarks to students, on the other hand, offer a “straightforward” case of government speech.

“When a public-school teacher addresses her students within the four walls of a classroom—whether orally or in writing—she is unquestionably acting ‘pursuant to [her] official duties,'” the opinion reads. “Interacting with students during class time, quite literally, is a teacher’s ‘official dut[y].'”

The majority – made up of Circuit Judges Kevin Newsom and Andrew L. Brasher, both of whom were appointed by President Donald Trump – concede they are on new ground with their First Amendment analysis, as the issue has never come up in the 11th Circuit before.

In other circuits, however, similar questions have been asked and answered, the judges note. The majority cites an opinion where a teacher was disciplined for anti-Iraq War statements. In that case, the 7th Circuit held: “a teacher’s in-classroom speech is not the speech of a ‘citizen’ for First Amendment purposes.” The majority also cites similar on-point precedents from the 6th and 9th Circuits.

The opinion applies that logic to Wood’s case, at length:

When a public-school teacher speaks “in the course of performing [her] job”—i.e., “speaking to [her] class in [her] classroom during class hours,” Johnson—she does so pursuant to her official duties and therefore speaks as a government employee, not a citizen. The speech at issue here—in which Wood verbally provided her preferred honorific and pronouns, wrote them on her whiteboard and syllabi, and wore a “she/her” pin—fits that description precisely.

In dissent, Circuit Judge Adalberto Jordan, a Barack Obama appointee, would have found that a teacher’s “official duties” only enter into the equation when the curriculum is being taught.

“To the extent that Florida tries to shoehorn the use of preferred personal titles and pronouns into the curricular bucket, that attempt fails,” Jordan complains. “The Supreme Court has generally defined a school’s curriculum as activities or matters that are ‘supervised by faculty members and designed to impart particular knowledge or skills to student participants and audiences.’ A teacher’s preferred personal title and pronouns simply do not fit into this understanding.”

The dissent goes on to accuse the majority of misreading the cases it cited, arguing that in each of the prior instances, the teachers were punished for speech considered either part of the curriculum or part of their official instructional duties.

Jordan noted how the U.S. Supreme Court recently rubbished the idea that “anything a teacher says at school is automatically government speech,” in a widely-publicized case where a football coach won a First Amendment challenge after he was punished for leading students in prayer after games.

The majority, for its part, distinguished that opinion by noting the nation’s high court determined the coach “was not ‘on duty’ when he was praying.”

Jordan’s dissent, like the district court opinion, begins with a jab at Florida’s recent encounters with First Amendment law – even though, of course, the state prevailed in the present case, at least for now.

The broadside criticism reads, at length:

Justice Robert Jackson wrote during World War II that “[i]f there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”  That venerable principle has stood the test of time.

Florida, however, has recently come to believe that the First Amendment does not prevent it from dictating what can and cannot be said. Not surprisingly, its attempts at speech orthodoxy have so far not succeeded.