On March 30, 2022, NCLR, with our colleagues at Kaplan, Hecker & Fink LLP, filed a new lawsuit challenging Florida’s so-called “Don’t Say Gay or Trans” legislation, which Governor Ron DeSantis signed into law on March 28. Along with several students, parents, and teachers, we represent Equality Florida, which has over 400,000 members, and Family Equality, the nation’s leading group for LGBTQ-parent families and their children.
The new Florida law seeks to create a climate of fear, uncertainty, and financial risk for any school that wants to be an inclusive place of learning. Under this law, even mentioning the existence of LGBTQ people in the classroom can prompt a costly private lawsuit against the school district. Because the law allows any parent to sue schools, it empowers private parties to attempt to censor the curriculum to prevent any mention of LGBTQ people.
The law accomplishes all this through its deliberate vagueness, which is carefully crafted to ensure that the law will inhibit teachers and students from speaking about LGBTQ people or issues. The law bans all “instruction … on sexual orientation and gender identity” for K through 3rd grades. For later grades, it requires any such “instruction” to be “age-appropriate” and “developmentally appropriate.” This is not limited to instruction by school personnel; it imposes these requirements on “instruction” by “third parties” too.
None of these things are defined in the law. For example, if a teacher mentions the name of their same-sex spouse in class, is that considered unlawful “instruction” on sexual orientation? The law doesn’t say. If a history teacher tells students that an important historical figure was LGBTQ, does that run afoul of the law? What if a student doing a class presentation mentions their two moms or their two dads – are they a “third party” that is providing illegal “instruction”? The only way for the school to find out is to have a lawsuit filed against it.
The inevitable result of this unclear and punitive law is that teachers and school administrators will try to reduce the risk of being sued by eliminating all mention of LGBTQ people in the classroom. In fact, the law is already having exactly this type of chilling effect.
Our client Michael is a high school sophomore. He’s gay and started a Gay-Straight Alliance at his school. Already, teachers have told him that they will no longer be able to work with him and other students to work on school policies and guidelines dealing with problems LGBTQ students commonly face.
Our client Anita Hatcher is a middle-school English teacher. In the past, she has included class discussions of LGBTQ issues as they relate to readings, authors, and her students’ own experiences. She’s now afraid that anything she says that touches on LGBTQ people or issues might lead to a lawsuit.
Our clients also include same-sex couples who have children attending Florida public schools and parents who are raising LGBTQ students. They are afraid, with good reason, that the new law will result in their families being erased from the classroom. They are worried that the new law will make their kids feel like their families are not a welcome part of the school community, or worse, that mentioning their families in class might result in punishment or bullying.
The U.S. Constitution protects students and families from these types of vague, hostile, and exclusionary state laws. Although defenders of the law claim that it only seeks to ensure that any instruction about “sexuality” be age-appropriate, previous Florida law already requires that instruction on human sexuality be appropriate for the student’s age and grade. And the sponsors of the bill specifically rejected an amendment that would have limited the law to teaching about sex or sexuality.
The reason is clear: those who passed “Don’t Say Gay or Trans” were not interested in ensuring age-appropriate sex education. They passed this law precisely because they wanted to scare teachers and administrators with the threat of lawsuits, to prod them into erasing LGBTQ lives and families from the classroom. Our clients are already feeling the chill of this unconstitutional legislation, but they won’t be silenced. That’s why they’re fighting back.