In March of 2022, the state of Florida enacted controversial legislation aimed at restricting speech in public schools relating to gender identity and sexual orientation. Formally entitled the “Parental Rights in Education Act,” the statute soon became widely known as the “Don’t Say Gay” law following public outcry against what many see as its discriminatory targeting of LGBTQ+ children and families. The law, which applies to public K-12 schools in the state, bans “classroom instruction . . . on sexual orientation or gender identity” from kindergarten through the third grade and further prohibits such instruction at any grade level if done “in a manner that is not age-appropriate or developmentally appropriate for students in accordance with state standards.” Fla. Stat. § 1001.42(8)(c)3.
Critics of the law maintain that it undercuts the equal dignity of LGBTQ+ people, that it will have the effect of stigmatizing and silencing LGBTQ+ teachers and students, and that it runs afoul of the First Amendment and other constitutional provisions. They note that the statute’s broad and vague language—the law neither defines “classroom instruction” nor does it specify what makes such instruction “age-appropriate” or “developmentally appropriate”—leaves crucial questions about the scope of its prohibitions unanswered. Is it a violation of the law for a school library to carry, or for a teacher to assign, a book featuring an LGBTQ+ character? If a student who has gay parents draws a picture of her family, can the teacher display it along with the other students’ drawings? Is a teacher allowed to say anything if a student is being bullied because of their gender identity or sexual orientation?
This lack of clarity, opponents contend, implicates constitutional free speech protections and threatens basic principles of academic freedom. Adding to this threat are the law’s extraordinary enforcement mechanisms, which among other things allow dissatisfied parents to trigger investigations of schools and to sue school boards in court for damages and other relief based on suspected violations of the statute. By opening the door to arbitrary and discriminatory enforcement against speech that favors or promotes the inclusion and acceptance of LGBTQ+ individuals, the law arguably runs afoul of the First Amendment’s stringent prohibition on viewpoint discrimination and imposes an unconstitutional chilling effect on disfavored speech. The law’s proponents contend that it is not discriminatory because its terms also technically prohibit instruction pertaining to heteronormative family relationships and cisgender identity. The legislative motivation behind the law’s enactment and the persistence of anti-LGBTQ+ prejudice in parts of society, however, make it doubtful that the law will be applied evenhandedly, regardless of its formal wording.
Some defenders of the “Don’t Say Gay” law have also cast doubt on the extent of First Amendment rights in the K-12 classroom, at least where curricular instruction is concerned. However, while courts have traditionally been much more limited in their recognition of rights to free speech and academic freedom in elementary and secondary schools than in the college and university context, even K-12 public school teachers and students enjoy certain basic rights to teach, learn and speak without government retaliation or censorship.
Soon after the “Don’t Say Gay” law was passed, LGBTQ+ rights organization Equality Florida and a group of students, parents and teachers filed a lawsuit challenging its constitutionality in federal court. The court dismissed the suit on standing grounds without reaching the merits of the claims but has allowed the plaintiffs to file an amended complaint. Equality Fla. v. Fla. State Bd. of Educ., No. 22-cv-134, Dkt. 120 (N.D. Fla. Sept. 29, 2022).
Florida’s “Don’t Say Gay” law is just one of several recent attempts to limit speech in educational settings across the United States. This year, Florida also enacted the “Stop W.O.K.E. Act,” which restricts various categories of speech pertaining to race and racial injustice at both the K-12 and university levels. Since last year, nearly twenty other states have passed similar legislation, and several of these laws are the subject of pending litigation. Additionally, in October of 2022, Republicans in the U.S. House of Representatives introduced a national “Don’t Say Gay” bill that would place even more restrictions on classroom instruction than does the Florida legislation.
