Iowa appeals block on Senate File 496's book ban, gender and sexuality restrictions

The state of Iowa is appealing a federal judge's decision to block enforcement of a state law that prohibits instruction about gender identity and sexual orientation in younger grades and bans books depicting sex acts from schools.

In late December, U.S. District Court Judge Stephen Locher granted an injunction on two key pieces of Senate File 496, a sweeping new education law that Gov. Kim Reynolds signed in May, while legal challenges continue. Other parts of the law remain in effect, including a requirement that school districts notify families if their child requests a different name or pronoun to affirm their gender identity.

The law has prompted school districts to remove at least 470 unique titles from schools, according to a Des Moines Register database built on public records requests. The books include controversial LGBTQ memoirs with sexual scenes, classic American novels, popular young adult fiction, novels commonly read in AP courses, nonfiction books about historical events, children's books with LGBTQ themes and more.

More: Federal judge blocks enforcement of Iowa law banning school books, gender identity instruction

Senate File 496 faces two ongoing federal lawsuits — one from families with LGBTQ children and advocacy group Iowa Safe Schools, the other from publisher Penguin Random House, the Iowa State Education Association and authors whose books have been banned — that accuse officials of violating the U.S. Constitution and discriminating against LGBTQ viewpoints.

Iowa Attorney General Brenna Bird filed notices Friday to appeal the judge's decision to the federal Eighth Circuit Court of Appeals. The notices were filed on behalf of defendants Gov. Reynolds, Iowa Department of Education Director McKenzie Snow, chair of the state Board of Educational Examiners Chad Janzen and the state Board of Education.

The appeal covers the entire injunction, a spokesperson told the Des Moines Register Friday.

“When we send our kids to school, we trust that their innocence will be protected. I’m glad to say that we are today appealing the district court’s decision in order to uphold Iowa’s law that keeps sexually explicit books out of the hands of our kids in school," Bird said in a statement.

"Iowa’s law is clear; sexually explicit books and materials have no place in our elementary school classrooms or libraries. As a mom, I share parents’ concerns and remain committed to keeping our schools a safe place for kids to learn and grow. With this appeal, we will continue the fight to protect Iowa families and to uphold Iowa’s law in court.”

Why did a judge block enforcement of Iowa's book ban law?

Senate File 496 requires schools to remove any books that depict or describe a "sex act" as defined in state law, such as penetration of a penis into a vagina or anus or touching of genitals with a hand.

Reynolds and Iowa Republicans have said their goal was to keep inappropriate and pornographic material away from children in schools. Parents who formally challenged books they believed were inappropriate in recent years at the district level felt the process was too difficult, biased, subjective and did not address their concerns. Republican legislators channeled their frustration into Senate File 496.

Opponents of the law believe it amounts to censorship and discrimination while making no distinction between pornography and literature.

More: Illustrated anatomy book among 73 removed by Iowa school district to comply with law

In his ruling, Locher wrote that that Iowa Legislature "has imposed a puritanical 'pall of orthodoxy' over school libraries," quoting previous legal rulings, that is not allowed. He wrote that Senate File 496 makes no attempt to target books in a reasonable way while requiring the removal of any book that depicts or describes a "sex act," regardless of context.

He wrote that the small number of books the state believes are too vulgar for schools, such as frequently challenged LGBTQ memoirs "All Boys Aren't Blue" by George M. Johnson and "Gender Queer" by Maia Kobabe, stands in contrast to the hundreds of books that have been removed, "despite undeniable political, artistic, literary and/or scientific value."

He rejected the state's arguments that the library selections are "government speech" and that the restrictions do not violate the First Amendment because they are still available at a public library or a bookstore.

More: Pella voters keep library independent by slim margin following failed 'Gender Queer' challenge

He also wrote that the state presented no evidence that students having access to books depicting sex acts caused significant problems in school or issues to the degree that there would "substantial and reasonable governmental interest" to remove all such books.

Law could be considered too vague, judge wrote

Locher also wrote that the law's book ban could be considered too vague and put teachers in a difficult position where they have to interfere with students' First Amendment rights or face discipline in unclear scenarios.

The judge also blocked enforcement of the law's prohibition on any "program, curriculum, test, survey, questionnaire, promotion, or instruction relating to gender identity or sexual orientation" through sixth grade.

Some school districts have interpreted this language to include a ban on children's books with LGBTQ themes, such as "And Tango Makes Three," a picture book about two male penguins who hatch a chick and start a family. Some students alleged the provision had a chilling effect on their expression in schools and impacted gender-sexuality alliance clubs.

More: State attorney argues Iowa schools have been too broad in banning books under SF 496

Locher ruled the prohibition is "staggeringly broad" under its plain text and appears to prohibit any instruction of any gender identity, not just transgender identity, and any sexual orientation, including heterosexual.

He wrote that under the neutral text of Senate File 496, for example, a math teacher would violate the law by assigning a math problem about Sally eating apples and asking how many "she" has left; schools could not label bathrooms for "boys" or "girls" and teachers could not be asked to go by "Miss" or "Mr."

Locher wrote that he had to follow the text, not the state's apparent intention to prohibit discussion of trans identities or gay relationships. However, he wrote, the state's intention to enforce the law against discussion of same-sex relationships or trans identities would still present constitutional issues.

What happened after the judge's decision?

Penalties for educators who violated the Senate File 496's book ban were due to take effect Jan. 1.

While Judge Locher's decision blocks enforcement of the book ban and prohibition on instruction about gender identity and sexual orientation, it does not require school districts to place books back on shelves.

Like the book ban itself, the results of the injunction have been inconsistent in districts across the state.

Some districts are putting the books they removed under Senate File 496 back on the shelves, including Iowa City and Cedar Rapids, the Gazette reported. But others told the Register they did not plan to make any changes at this time, such as North Polk and Waukee.

Several districts told the Register this month they were still reviewing the matter with their legal counsel and had not made any decisions.

Chris Higgins covers the eastern suburbs for the Register. Reach him at chiggins@registermedia.com or 515-423-5146 and follow him on Twitter @chris_higgins_.

This article originally appeared on Des Moines Register: Gov. Kim Reynolds appeals judge's block on Iowa's book ban law