As Iowa K-12 students begin to return to the classroom, they’ll be greeted by a draconian book ban that has already resulted in almost 3,400 books being removed from school library shelves. Iowa schoolchildren are currently safe from reading such filth as George Orwell’s “Animal Farm” and Maya Angelou’s “I Know Why The Caged Bird Sings” thanks to the Eighth Circuit Court of Appeals.
For a moment, though, it didn’t seem like this would be the case.
Late last year, the ban was largely blocked by Judge Stephen Locher after two lawsuits were filed. Eight public school students age 9 to 17 who identify as LGBTQ+ sued, along with their parents, while a major book publisher, Penguin Random House, filed a separate lawsuit along with multiple authors, teachers, and school librarians.
Iowa’s law bans all books with depictions of sex acts from schools, no matter the context. In his ruling, Locher noted he could not find a single case that upheld the constitutionality of a ban like Iowa’s. The state admitted additional portions of the law were modeled on other bans, like Florida’s “Don’t Say Gay” law, and designed to block schools from discussing LGBTQ+ issues.
However, as Locher noted, the law is written so broadly that it doesn’t distinguish between LGBTQ+ content and straight or cisgender content, and because it is so broad, it was “void for vagueness” and therefore unconstitutional. A law is void for vagueness when it does not give someone precise enough notice of how they would run afoul of the law.
While Locher’s decision was an overall win for the plaintiffs in that he blocked much of the law from taking effect, he ruled that all but one of the student plaintiffs did not have standing to proceed. The Constitution limits federal courts to hearing actual cases or controversies rather than issuing advisory opinions or resolving hypotheticals. Because of this, plaintiffs must show three things:
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That they have personally suffered a concrete injury, or will imminently suffer one.
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That their injury is traceable to the party they’ve sued.
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That it is likely a decision in their favor would address the injury.
The students challenged a provision requiring teachers to notify parents when a child requested an accommodation related to gender identity, such as a different name or pronoun. However, these students were already out to their parents, the court noted, so they were not harmed by a notification provision.
The court also rejected their argument that the law contributed to an overall stigma targeting LGBTQ+ students, saying that was not a concrete injury. The lower court also ruled most student plaintiffs couldn’t challenge the provision restricting any discussion of gender identity in grades six and below. The students said the law made them feel uncomfortable revealing their identities at school, but the court said Iowa’s law doesn’t prohibit them from expressing their gender identity—just learning about it—so that was not an injury.
Locher was nominated to the court by President Joe Biden, and likely wasn’t operating from a place of anti-trans bias. Nonetheless, it’s frustrating to see the discomfort and stigma that LGBTQ+ students will experience under this law hand-waved away. It’s a law targeted at making sure there is never any positive instruction about LGBTQ+ people and that any books about LGBTQ+ people are banned. At least Locher realized the underlying book ban was unconstitutional.
However, Iowa is part of the Eighth Circuit, and the Eighth Circuit Court of Appeals has only one Democratic appointee on it, so it isn’t surprising the three-judge panel overturned Locher on Aug. 9 and largely let the ban go into effect while the case proceeds through the courts.
It’s useful—if depressing—to contrast how standing was analyzed here versus cases where conservative Christians are the plaintiffs. In Deanda v. Becerra, decided in March, the Fifth Circuit Court of Appeals upheld a lower court’s grant of standing to a Texas father, Alexander Deanda, who sued the federal government over Title X, which gives grants to health care providers that offer family planning services, including contraception.
Federal law requires Title X to serve adolescents, and for nearly 40 years, every federal court to consider the matter concluded Title X prohibited a parental notice or consent requirement. Deanda sued to stop all Title X grants to providers unless they added a parental consent requirement. Deanda alleged that Title X “weaken[ed] his ability to raise his children under the teachings of his Christian faith” because they could get prescription birth control without his consent, and he believes birth control leads to promiscuity and premarital sex.
At the time of the lawsuit, Deanda had an adult son. Two of his daughters were adults when his case reached the Fifth Circuit. This third daughter was a high school junior. Deanda never alleged his children ever sought or received birth control from a Title X clinic. He didn’t even allege any of his children were intending to seek birth control from a Title X clinic. He suffered no injury and no injury was imminent.
Additionally, as Cornell Law Professor Michael Dorf explained, Deanda sued the wrong defendants. The federal government does not run Title X clinics—it just funds them. The entity that would have “harmed” Deanda would have been a clinic that gave his minor child contraception without his consent. But Deanda prevailed, where the LGBTQ+ student plaintiffs explicitly targeted by Iowa did not.
To be fair, the Fifth Circuit is only doing the same thing as the nation’s highest court. In 2023’s 303 Creative v. Elenis, a Christian designer sued the state of Colorado, saying the state’s anti-discrimination law would force her to compromise her Christian beliefs by making wedding websites for same-sex couples.
The designer stated she had received a request for a same-sex wedding website, but that turned out not to be true. She also had never made any wedding websites, straight or otherwise, at the time she brought the lawsuit. Nevertheless, the Supreme Court’s conservatives banded together to rule in favor of the plaintiff, despite her lack of any harm.
Western Michigan University Professor Brendan Beery categorizes this as standing based functionally on hurt feelings. Christian conservatives feel injured when asked to participate in secular society or when asked to refrain from pressing their beliefs upon others, and they now have a federal judiciary very receptive to those claims.
Expect to see the courtroom doors wide open to those hurt feelings, yet slammed shut for everyone else.
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