Law & Courts

Is Florida’s ‘Don’t Say Gay Law’ Legal? A New Lawsuit Argues No

By Eesha Pendharkar — April 12, 2022 5 min read
Participants with the Alliance for GLBTQ Youth march at the annual Miami Beach Gay Pride Parade on April 9, 2017, in Miami Beach, Fla. Republican-backed legislation in Florida that could severely limit discussion of gay and lesbian issues in public schools is being widely condemned as dangerous and discriminatory, with one gay Democratic lawmaker saying it’s an attempt to silence LGBTQ students, families and history.
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Gay rights activists are suing Florida Governor Ron DeSantis and the state board of education over the controversial “Don’t Say Gay” law, claiming that it harms LGBTQ students and families and violates their freedom of speech and equal protection rights.

DeSantis, a Republican, signed the “Don’t Say Gay” bill—officially known as the Parental Rights in Education bill—into law on March 28. It goes into effect July 1, after which teachers will not be allowed to provide classroom instruction on “sexual orientation or gender identity” to K-3 students. For older grades, teachers can teach these topics in an “age-appropriate” manner, according to the law. The state board of education will determine what “age-appropriate” can encompass. Parents will be able to sue districts if they believe that teachers are in violation of the law.

Although the law itself does not make a direct reference to the LGBTQ community or ban the use of the word “gay,” Republican lawmakers and DeSantis have publicized their intentions to curb discussions on gender identity—more specifically, students identifying as transgender—and the LGBTQ community through passing this law.

“This lawsuit is a political Hail Mary to undermine parental rights in Florida. Unsurprisingly, many of the parties to this suit are advocacy groups with publicly stated political agendas,” said Taryn Fenske, a spokeswoman for DeSantis’ office. “We will defend the legality of parents to protect their young children from sexual content in Florida public schools.”

Fenske said in a statement that the lawsuit has several erroneous claims, and called the allegation that it violates the First Amendment “baffling.”

“The law does not prohibit student-prompted discussion in the classroom,” she said. “The law does not prohibit teachers from having opinions, lifestyles, or advocacy in their personal right on their own time, and this law does not prohibit teachers from responding to student questions.”

Since the bill was introduced last year, it has been the subject of harsh criticism in Florida and beyond. Florida students protested the bill before it was signed into law, late-night TV show hosts and entertainers called it out for its anti-LGBTQ intent on national television, and, after facing pressure from its employees, Disney spoke out against the law.

President Joe Biden and U.S. Secretary of Education Miguel Cardona have also made their opposition of the law clear. “My Administration will continue to fight for dignity and opportunity for every student and family — in Florida and around the country,” Biden said in a tweet last week.

Equality Florida filed the lawsuit against the state because of the harm it is already doing to the LGBTQ community in Florida, said Brandon Wolf, press secretary of the non-profit LGBTQ advocacy organization.

“The law is singularly designed to censor speech about LGBTQ people,” he said. “The reality of the language behind how the bill was introduced, how the bill was talked about, by the sponsors, and the language that the governor has used even before he signed it makes it pretty clear that the bill’s target is the LGBTQ community.”

According to the lawsuit, the law impinges upon students’ First Amendment right to receive and debate information and ideas concerning sexual orientation and gender identity and their right to freedom of expression because they can’t freely discuss their sexual orientations or gender identities in the classroom under the law.

It also claims that the Parental Rights in Education bill violates students’, teachers’, and parents’ 14th Amendment rights by violating the equal protection clause, because LGBTQ students or families will be treated differently based on their sexual orientation or gender identity.

It also lists several students, teachers, and parents as plaintiffs and explains why the law is harmful to each of them before it has taken effect.

Teachers are worried about what they can or can’t teach regarding LGBTQ topics, gender identity, and sexual orientation. Students are concerned their campus groups, such as Gay-Straight Alliances, might soon be banned. And same-sex parents are worried that their children might be bullied and ostracized because of the parents’ sexual orientation.

  • A 17-year-old sophomore who is part of a Gay-Straight Alliance at his school, was told by his GSA advisor that she could potentially lose her job for adjusting pronouns to respect a student’s gender identity, the lawsuit said.
  • The same student said in the lawsuit that in his creative writing class, he wrote about his sexual identity and orientation. After the law was passed, he does not know if he can continue writing about those topics.
  • Last year, during a discussion on the role of chromosomes in gender identity, the student’s biology teacher explained the difference between sex and gender, which he worries may not be possible now. These kinds of curriculum alterations will impact his education negatively, according to the lawsuit.
  • A middle-school English teacher said she used to assign independent reading to her students and let them choose their own genre or authors. Now she is worried that if she engages with a student who plans to read a book by an LGBTQ author or about LGBTQ characters, she might be disciplined.

The Florida lawsuit is among others that have challenged legislation that restricts the teaching of race and racism across the country. In New Hampshire, Oklahoma, and Arizona, state advocacy groups have sued state departments and governor’s offices for passing “critical race theory” laws.

In Arizona, a law was blocked as a result of the lawsuit. The fate of the Oklahoma and New Hampshire laws remains undecided.

Equality Florida is suing in the hope that the law is repealed, Wolf said.

“Our lawmakers instead have chosen to invest all of the taxpayer money and time in fighting these culture war issues that are designed for no other purpose than to help them win elections down the road,” he said.

“Our ultimate goal is not only to see this law overturned or repealed, but also to create a culture of accountability for the lawmakers who took the yes vote on it.”

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