Understanding Florida’s “Don’t Say Gay” Bill

Source: Stocksy
Source: Stocksy

Florida is the scene of an intense debate over LGBTQ rights and elementary education curriculum with the recent passage of the Parental Rights in Education bill, known by critics as the “Don’t Say Gay” bill. The law made it through Florida’s Senate and House of Representatives and is now awaiting official signature by Governor Ron DeSantis. For some, the bill is a much-needed measure that maintains parents’ rights to teach their young children about LGBTQ communities and topics at home instead of in school. For others, the bill is a violation of LGBTQ rights and an erasure of LGBTQ identities. The debate has gotten so heated that Disney, Florida’s largest employer, is now embroiled in the conflict, spurring walkouts by Disney employees protesting the bill and Disney CEO Bob Chapek’s stance. So what’s this bill about? Does it really prevent people from saying the word “gay” in Florida schools? Let’s take a closer look at the bill’s language and journey through some implications if it officially becomes law.


What Does the Parental Rights in Education Bill Say?

First things first: The Parental Rights in Education bill does not prevent anyone from saying the word “gay”—in schools or otherwise. “Dont Say Gay” is a moniker for the bill that critics began using in protest of its passage earlier this month. The bill itself is pretty short: seven pages of language that primarily lay out the rights that Florida parents have to be informed and make decisions about their children’s “mental, emotional, or physical health or well-being.” But buried in provisions that most people would likely agree upon is provision three, which prevents “classroom instruction … on sexual orientation or gender identity” for students between kindergarten and third grade. If you don’t read the entire bill closely, the provision can be easy to miss. LGBTQ rights advocates didn’t miss it, though, and the bill’s passage in Florida’s legislature has caused quite the uproar.

Beyond the specific identification of students between kindergarten and third grade, the language of the third provision is pretty vague, leaving it up for different interpretations if passed and enforced in Florida courts. This vagueness rests in the bill’s blocking of instruction about sexual orientation or gender identity that is not “age appropriate or developmental appropriate” according to state standards. This is blanketing language that could extend the block past students in third grade, which is a main point of contention for those advocating against the bill.

Another issue that critics raise is the bill’s use of words like “instruction,” “gender identity,” and “sexual orientation” but no inclusion of definitions for those words. Does “instruction” require an official lesson plan or would a conversational exchange between a student and instructor count, too? Would children’s books about marriage equality and Obergefell v. Hodges (the 2015 U.S. Supreme Court case that legalized same-sex marriage) be considered history lessons or inappropriate instruction on sexual orientation? What about Florida’s own LGBTQ history involving the 2016 mass shooting at Orlando’s Pulse nightclub where 49 people were killed and more than 50 were injured? When these questions came up in the Florida legislature during the bill’s debate phase, none of the bill’s sponsors could answer. It’s this vagueness and these loose ends that concerns critics.



Is This Even Legal?

Those who support the Parental Rights in Education bill believe that it should be up to parents at home, not instructors at schools, to teach young children about gender identity and sexual orientation. On the surface, this seems like a reasonable request. The issue, here, is that the bill is written in such a way that could present legal issues under the First Amendment and Title IX of the Education Amendments of 1972.

The First Amendment of the U.S. Constitution protects speech and prohibits laws that have a “chilling effect” on protected speech. A common misconception with the First Amendment is that all speech is protected and that we can say anything, but Supreme Court cases have made clear that true threats, obscenity, or words of provocation/fighting words, among others, don’t have First Amendment protection. Classroom instruction about gender identity or sexual orientation doesn’t fit into any unprotected speech category, and a court would likely determine that the instruction is considered protected speech under the First Amendment. In this case, that means that the Parental Rights in Education bill could be an infringement on protected speech and is unconstitutional if the Florida state legislature can’t demonstrate any legitimate interest in passing it. Sponsors of the bill have said that the goal is to maintain parental authority in children’s education—an interest that courts would weigh against the interest of preserving protected speech to determine the legitimacy of the bill.

While the First Amendment could address the language of the bill itself, Title IX of the Education Amendments of 1972 could deal with the content of the law. Title IX protects people from sex-based discrimination in “covered entities,” which are educational institutions like public schools and colleges that receive funding from the federal government. Under Title IX, sex-based discrimination includes discrimination based on gender identity or sexual orientation, the exact topics that are targeted by the Florida bill. If courts find that blocking classroom instruction about gender identity or sexual orientation is discriminatory against LGBTQ students or instructors, the Parental Rights in Education bill would be a Title IX violation. President Joe Biden and the U.S. Secretary of Education Miguel Cardona have already spoken out against the bill for its seemingly direct violation of Title IX. The question that remains is whether or not federal courts agree.



What Happens Next?

The bill has passed both houses of the Florida state legislature, but until Gov. DeSantis officially signs the bill, it is not law. Because of comments—official and unofficial—that DeSantis has made, it’s expected that he will sign and that the Parental Rights in Education bill will become effective in Florida on July 1, 2022, right before the start of the 2022-2023 academic year. If this happens, there are a couple of legal actions that the opposition can take. First, LGBTQ advocates can sue in federal district court to block immediate enforcement of the bill. This is called an injunction, and it would temporarily stop the bill from going into effect as the courts determine whether or not it’s actually lawful.

In addition to the injunction, LGBTQ advocates can sue against the constitutionality of the bill as permanent prevention of its enforcement. This process can take a while and could potentially require lengthy litigation in the federal courts, maybe even requiring a judgment by the U.S. Supreme Court. If the law is ruled unconstitutional, it would no longer take effect in Florida, and it would also set precedent for blocking similar laws in other states. This is the solution that most LGBTQ-rights advocates would likely prefer, but again, it’s a process that could literally take years. This is the type of legal battle that tests the endurance of both sides and, at the end, is a definitive permission to either move forward with the law in place or eliminate it altogether.

If the bill is signed, Florida residents could file Title IX complaints against school districts that implement the law with the U.S. Department of Education’s Office of Civil Rights (OCR). The hiccup with this, though, is that a complaint can only be filed if there’s an actual discrimination violation. The bill passing isn’t enough to file a complaint. Hypothetically, a teacher would have to be sued for violating the Parental Rights in Education law or a student would have to be restricted from receiving direct instruction related to LGBTQ topics in order for a complaint to be filed. The OCR will investigate complaints, but if those who file complaints also file lawsuits in court, the OCR won’t pursue the complaint anymore. This puts people who could be discriminated against under the Parental Rights in Education bill in a unique dilemma of choosing between non-legal federal support from the U.S. Department of Education (a cheaper, less involved option with limited remedies) and legal action in court (a costly and timely alternative that could potentially reverse the law).



Why Does This Matter?

The Parental Rights in Education bill is one of nearly 240 anti-LGBTQ laws introduced in the U.S. in the first three months of 2022. With these numbers, 2022 is expected to be the most legally discriminatory against LGBTQ communities yet. This context makes the Parental Rights in Education bill particularly troubling. On the surface, the bill is a reasonable measure that could keep important conversations about sexuality out of school settings and maintain “age-appropriate” discussions, especially for young children. But with all proposed laws, we have to examine the full implications, including who could potentially be harmed, excluded, or discriminated against as a result of the law taking effect. The Parental Rights in Education bill is one of those laws that has great potential to erase the identities and experiences of LGBTQ people simply because of their gender identification or sexual orientation. If classroom instruction about sexuality is inappropriate in school settings, then that is a principle that should be applied uniformly, not just if the conversations surround LGBTQ topics. Limiting the existence of some and not others is exclusionary and hurtful.

Parents should absolutely have the authority to introduce certain topics to their children, and LGBTQ people should also be able to have their stories represented in all spaces. The most important conversations we can have with our children, in classrooms and at home, are ones of inclusion and acceptance, allowing everyone the dignity to be who they are fearlessly and unapologetically.