When Skink sent me the decision yesterday, without comment, I opened it to see a mere 38-page ruling from the Eleventh Circuit. In the grand scheme of judicial decisions nowadays, meaning since the advent of computers allowing the facile regurgitation of formulaic and prolix writing, a mere 38-page decision is considered relatively succinct. But still, it came from the swamp and rarely does anything good come from the swamp.*

And so I read, without further introduction, about someone named Katie Woods suing the Florida Department of Education, and the Hillsborough Board of Education. Suddenly the strains of Harper Valley PTA started swirling in my head, because as I dove further and further into the decision, I realized what a petty, absurd and ridiculous case this was.

Katie Wood is a transgender woman who teaches at a public high school in Florida. Two years ago, the state enacted Fla. Stat. § 1000.071(3), which, as applied to Wood, prohibits her from using the honorific “Ms.” and the gendered pronouns “she,” “her,” and “hers” in exchanges with students during class time. Wood sued to enjoin the enforcement of § 1000.071(3) against her. The district court granted Wood a preliminary injunction, finding it substantially likely that the law violates her First Amendment right to free speech.

We disagree. Because we hold that Wood hasn’t shown a substantial likelihood that § 1000.071(3) infringes her free-speech rights, we vacate the preliminary injunction and remand the case to the district court for proceedings consistent with this opinion.

So picture in your mind’s eye a teacher, standing at the front of the class, fully appearing to be a  woman. While I don’t know what Katie Woods looks like, I picture a person in a dress with long hair and the general appearance of a woman. And the school board thought it necessary to invoke a foolish Florida statute that prohibits this person, who by all appearances is a woman, from calling herself “Ms. Woods,” and using the pronouns “she” and “her”? And this is supposed to benefit students, because calling a person in a dress “Mr. Woods” is more beneficial for their intellectual growth?

It’s not as if Woods teaches human sexuality, or how Billy should perform oral sex on Johnny. Woods teaches algebra.

Katie Wood teaches algebra at a public high school in Florida. Wood was born a biological male but now identifies as a woman. After transitioning in 2020, Wood began using the honorific “Ms.” and the gendered pronouns “she,” “her,” and “hers.” 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.” Then, in 2023, Florida enacted Fla. Stat. § 1000.071, which states, in pertinent part, that “[a]n employee or contractor of a public K-12 educational institution may not provide to a student his or her preferred personal title or pronouns if such preferred personal title or pronouns do not correspond to his or her sex.”

Were the students somehow made aware of what genitalia were hiding beneath her panties, such that this law addressed a serious conflict? Sure, the school board knew, though only because Woods had been a “him” until 2020, when he became a “her.” But there Woods was, an algebra teacher in a dress, presenting for all to see as a woman.

The Eleventh Circuit found the issue, limited by the suit to Woods’ free speech rights as a government employee and inexplicably without any Bostock equal protection claim, to be easy to resolve. The court held that the state has the right to dictate non-curricular speech in the classroom. Woods’ claim, that her First Amendment rights were infringed by prohibiting her from using the honorific “Ms.” and the pronouns “she” and “her,” was rejected.

But a teacher’s right to speak is not without limits. One reason is that “[i]n addition to being [a] private citizen[ ],” a teacher is “also [a] government employee[ ] paid in part to speak on the government’s behalf and convey its intended messages.”

To resolve the private-citizen/government-employee tension, we employ a two-step framework grounded in the Supreme Court’s decisions in Pickering v. Board of Education (1968), and Garcetti v. Ceballos (2006). At step one, the employee must show that in expressing herself she is (or was) speaking both (a) as a citizen—rather than in her capacity as a government employee—(b) about a matter of public—rather than private—concern. If the employee survives step one, she must then demonstrate, at step two, that her interest in speaking outweighs the state’s interests in promoting the efficient delivery of public services.

Had she been teaching trans-math, if such a thing exists, that would be one thing. But this was about whether the kids should call their teacher “Ms.,” for crying out loud. Who cares? Why would anyone, any teacher, school board member, parent, state legislator or governor, care whether a transgender woman teacher uses the honorific “Ms.”?

In dissent, Judge Adalberto Jordan invoked Justice Robert Jackson’s famous quote from Barnette.

If 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.

The absurdity of Florida’s transgender orthodoxy aside, as well as the obvious and pointless confusion of requiring a teacher, and hence her students, to call a person in a dress by the honorific “Mr.,” doesn’t require the invocation of such a wise and serious reliance on the proscriptions of the First Amendment. It’s a friggin’ person at the front of the classroom who presents as a woman. What else are you supposed to do other than call the person “Ms.”?

There is another maxim that should have been invoked to prevent the Eleventh Circuit, not to mention the Hillsborough Board of Education, from making a federal case out of something so utterly petty, insignificant and obvious. De minimis non curat lex. If this is what federal circuit courts need to spend their time writing 38-page decisions about, then they have little reason to exist. Isn’t there a cop beating case where they can reject qualified immunity to work on?

*They don’t eat roadkill for the flavor, you know.