CHICAGO (CN) — The Seventh Circuit Court of Appeals heard oral arguments in a lawsuit over Indiana's conservative "don't say gay" law on Friday morning, after a Hoosier public school teacher brought a constitutional challenge against it.
Republican Gov. Eric Holcomb signed the statute — officially named House Enrolled Act 1608 — into law last May, amid significant pushback from civil rights and LGBTQ activists.
Mirroring a similar "don't say gay" law signed by GOP Florida Governor Ron DeSantis in March 2022, Indiana's law prevents public school staff from discussing human sexuality with children in prekindergarten through third grade. Critics say this includes issues related to gender identity.
The law also effectively compels educators to out transgender students to their parents, requiring schools to inform parents if a student requests to be addressed by a different name or set of pronouns.
After unsuccessfully suing the state over the law last June, Indiana grade school teacher Kayla Smiley claimed in her appellate brief that it was "in violation of the First Amendment."
She went on to argue the law is overly vague — leaving her in the position where she could run afoul of the law and endanger her job without realizing it. She feared that even carrying around her personal water bottle, which is emblazoned with slogans supporting the LGBTQ community, could result in a violation.
"House Enrolled Act 1608 puts Indianan educators, including Ms. Smiley, in a position that the Constitution forbids," Smiley's attorney Stevie Pactor of the Indiana ACLU argued before the Seventh Circuit appellate panel on Friday. "It fails to give Ms. Smiley a reasonable opportunity to determine what conduct this statute prohibits, and Ms. Smiley is therefore at continuing risk of severe licensing consequences."
U.S. District Judge James Patrick Hanlon declined Smiley's motion to enjoin the law last July, on the grounds that her First Amendment claim was unlikely to succeed on its merits. He argued that the law only restricted her expression to elementary students, which was insufficient to justify an injunction.
In court on Friday, the appellate panel took that logic further by asking if Smiley even had the standing to sue, given that she had not yet faced any adverse action because of the law. Pactor assured the justices that she did, based on the ongoing threat to her career.
"I believe it's undisputed that ... Ms. Smiley has standing, because even the Department of Education has indicated through its attestations that violation of this statute could very well trigger disciplinary action against a teacher who is deemed to violate it," Pactor said. "And certainly in today's environment for educators, that is a very credible threat of enforcement."
Pactor went on to describe what Smiley considered the law's inherent contradictions. How could Smiley break up a student fight in which one child called the other "gay" pejoratively, the attorney asked rhetorically, without broaching the prohibition on discussions of sexuality?
"How is she supposed to handle that situation?" Pactor asked.
At the prompting of Justice Candace Jackson-Akiwumi, a Joe Biden appointee, Pactor also highlighted two preexisting Indiana laws — one mandating the inclusion of sex abstinence in public schools' sex education courses, the other allowing parents to remove their children from sex education courses — to argue for the vagueness of the HEA 1608. The two referenced laws lay out clear curriculum guidelines for older students, while the three-page "don't say gay" law does not.
"No one teaches this to kindergarteners through third graders. There is no curriculum," Pactor said. "So a teacher in Ms. Smiley's position has to say, 'Well then, what could this be applying to?'"
Defending the law, Indiana Deputy Attorney General Melinda Holmes argued that elected officials had the right to "decide what should and what should not be taught in public schools about human sexuality."
"As a public school teacher paid by the state, Ms. Smiley does not have a First Amendment right to instruct students on whatever topic she wishes," Holmes said.
Holmes went on to argue that any reasonable person could understand that the law was meant to prevent educators from "lecturing students about sexual intercourse, sexual behavior [and] sexual attraction."
"Even Ms. Smiley admits that she understands that she can't give sex education to this group of students," Holmes said.
Jackson-Akiwumi was generally more sympathetic to Pactor's arguments, asking Holmes why the law did not only apply to classroom teachers or use specific language related to sex-education courses if that was the case.
"If it's about lecturing, why then did the Indiana Legislature not use the term — as it has in other statues — 'classroom instruction?'" Jackson-Akiwumi asked. "And why then ... broaden it to all staff, third party vendors [or] anybody who's in that school?"
Holmes said the framing was meant to cover social workers and other public employees who may be instructing young students — but the liberal-leaning judge remained skeptical. She pointed out Smiley's concerns that the law may prohibit books in her classroom that involve LGBTQ families.
The discussion also touched on the role of gender identity in the law. While the law only explicitly prohibits instruction on "human sexuality," critics have pointed out the intertwined nature of sexuality and gender.
"I guess I'm a little concerned when we're looking at the legislative history that helped define 'human sexuality,'" Justice Doris Pryor, another Joe Biden appointee, said. "As far as where the statute started, and then what was the end result."
"They gave a listing of the terms that were there before the legislators decided on 'human sexuality' as the word, and it included 'gender identity,' 'gender roles,' 'gender stereotypes,' [and] 'gender expression,'" Pryor added. "It was titled 'sexual orientation and gender identity instruction' — and we've replaced that now with 'human sexuality.'"
Holmes maintained that the judges should look at "the plain meaning" of the terms in the law. She expressed doubt it would prohibit books on LGBTQ families or students' questions regarding them.
Both Justices Pryor and Jackson-Akiwumi remained skeptical. They, along with third panel member justice Michael Scudder, a Donald Trump appointee, took the case under advisement but did not say when they would issue a ruling.
Friday's arguments marked the second time in as many weeks that the Seventh Circuit has reviewed an anti-LGBTQ law out of Indiana. Last week, the appellate court heard arguments in a case over the state's ban on gender-affirming medical care for transgender youth.
In that case, the roles were reversed, with Indiana hoping to lift a partial injunction Judge Hanlon placed on the law last June.
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