Full Fifth Circuit to Review Library LGBTQ+, Sex Ed Books Case


The full Fifth Circuit will take up a First Amendment case involving a Texas library that pulled several books off the shelves that it deemed to be inappropriate, including books on racism, sexual education, transgender identity.

The conservative-leaning appeals court on Wednesday announced it would rehear the case and vacated a divided panel court ruling that largely upheld a trial court judge’s preliminary injunction that ordered the library to put the books back into general circulation. It is one of a growing number of lawsuits challenging library and public school book bans or restrictive policies.

The lawsuit was brought by seven patrons of the Llano County library system, who argued that the library and county officials infringed on their First Amendment right to access information when they decided to pull 17 books out of circulation after receiving complaints about their content. The titles include “Being Jazz: My Life as a (Transgender) Teen” and “Caste: The Orgins of Our Discontent”—a No. 1 New York Times bestseller about the history of racism in the US.

The divided panel opinion held that the plaintiffs were likely to succeed on their First Amendment claims and ordered the library to place eight of the contested titles back on the shelves.

“Government actors may not remove books from a public library with the intent to deprive patrons of access to ideas with which they disagree,” Judge Jacques L. Wiener wrote in the majority opinion.

Judge Stuart Kyle Duncan, a Trump appointee, authored a fiery dissent that accused his colleagues of stepping into the role of “co-chairs of every public library board” within the circuit’s jurisdiction. He said the rules the majority established for determining when a library can and can’t remove books would be a “nightmare” to apply.

“The commission hanging in my office says “Judge,” not “Librarian,” Duncan wrote.

Wednesday’s order granting en banc review was accompanied by a letter from the court clerk, which established a briefing schedule over the summer and informed the parties that argument would be heard during the week of Sept. 23.

Botkin Chiarello Calaf and BraunHagey & Borden LLP represent the library patrons. Mitchell Law PLLC represents the county and other named defendants.

The case is Little v. Llano County, 5th Cir., No. 23-50224, petition for rehearing granted 7/3/24.