Last week, a Florida House committee approved a bill that would ban discussions about sexual orientation and gender identity in schools.
The so-called Parental Rights in Education bill—which isn’t yet a law but is apparently being fast-tracked to a vote in the House as part of Republican Gov. Ron DeSantis’ “parents’ rights” agenda—would forbid educators from “encouraging classroom discussion about sexual orientation or gender identity in primary” school, or at any grade level “in a manner that is not age-appropriate or developmentally appropriate for students.”
The wording is tactically vague, but the intent is clear.
Part of a class of legislation colloquially known as “don’t say gay” bills, which have been introduced in several state legislatures in recent years, the Florida bill, if passed, could easily be construed as a directive to educators to erase all mention of marginalized people’s lives from the classroom.
Its implication—that the mere existence of LGBTQ people is an inappropriate topic for children—draws on a long history of homophobic legislation that portrays queer identities as hypersexualized and perverted. But by prohibiting discussion of any sexual orientation or gender identity, including presumably, the straight and cisgender ones, the legislation could evade being struck down by anti-discrimination laws.
There is absurdity in this approach. None of the censorious conservatives behind these bills are going to bring a lawsuit against a school district whose social studies curriculum teaches, for example, that George Washington was straight-married to Martha. (Some of the “Don’t Say Gay” laws make exceptions that would seem to permit some discussion of sexual orientation—provisions that allow for teaching about LGBTQ historical figures, for instance, or the Florida bill’s cutout for “age-appropriate or developmentally appropriate” material.)
But it is not necessarily the point of these laws to be read and followed precisely as written. Instead, the lawmakers who advance them intend to create a chilling effect, such that teachers and school administrators are too afraid to teach LGBTQ history, discuss relevant current events, or offer support to queer and trans students, lest they run afoul of a vaguely written law.
“Does it mean that school districts could no longer host Women’s History Month conversations in classrooms because being a woman is a gender identity?” said Brandon Wolf, the press secretary of Equality Florida, discussing the sinister vagueness of the law. “If school districts allow teachers to put pictures of their partners on their desks—is that encouraging students to ask questions about sexual orientation based on the gender identity of their partner?”
In the 1980s and ’90s, many state legislatures passed similar laws that constrained discussion of LGBTQ life in schools much more explicitly. Four states—Texas, Louisiana, Mississippi, and Oklahoma—still have them on the books. (In Texas, certain educational materials must “state that homosexual conduct is not an acceptable lifestyle and is a criminal offense,” even though gay sex has been legal since the Supreme Court’s 2003 ruling in Lawrence v. Texas.)
But in the past few years, several states have struck down these older laws, known colloquially as “no promo homo” laws, a move that came after LGBTQ advocacy groups challenged them with lawsuits. Presumably, lawmakers knew the older restrictions would not hold up in court.
Their instincts were well-founded: In 2020, a federal judge overturned a South Carolina law that made it illegal for public school educators to discuss “alternate sexual lifestyles from heterosexual relationships” in contexts other than sexually transmitted infections. The ruling stated that the law discriminated on the basis of sexual orientation and thus violated the equal protection clause of the 14th Amendment.
The newer “don’t say gay” bills appear to be an attempt to avoid such charges of discrimination. They replace explicit references to homo- and heterosexuality—which would indicate disparate treatment—with the catch-all terms sexual orientation and gender identity.
In 2021, Tennessee and Montana both passed laws in this vein that allow parents to opt students out of classroom discussions of sexual orientation and gender identity. The Arizona state Legislature passed a bill last year that would have required parents to give students explicit permission to be present for classroom conversations about those topics—a more severe opt-in policy. (Republican Gov. Doug Ducey vetoed the bill in favor of an executive order requiring that all sex education materials be posted online for parents to view.)
Florida’s bill goes further, by encouraging everyday civilians to enforce it. If passed, parents would be allowed to directly sue a school district—and possibly receive damages in addition to attorney’s fees—if they suspect an educator has violated the law.
This “private right of action” has been a recurring theme in the DeSantis agenda. Last June, he signed into law a bill that allows any student who has been “deprived of an athletic opportunity” by a trans kid to sue the school. And DeSantis’ proposed “Stop WOKE Act,” an initiative to ban the teaching of critical race theory in schools and businesses, would have allowed parents and students to bring lawsuits against school districts that contravened the law.
Republicans in the state Senate are currently advancing another version of that proposal, which would prohibit teachings that suggest students and employees should “feel discomfort, guilt, anguish, or any other form of psychological distress on account of his or her race, color, sex, or national origin.” (DeSantis has expressed frustration with it, because it doesn’t allow individuals to sue the schools directly.)
Even though it hasn’t yet passed, that bill has already had a chilling effect. This week, a Florida school district canceled a history professor’s planned seminar for teachers on the civil rights movement. In an email to educators who’d planned to attend, the superintendent said the school district wanted a committee to review the professor’s presentation, “in light of the current conversations across our state and in our community about critical race theory.”
This kind of smothering environment is the desired outcome of Florida’s “don’t say gay” bill.
If parents are empowered to take legal action against any already-cash-strapped school that acknowledges the existence of LGBTQ people, schools will simply stop acknowledging that LGBTQ people exist. As Wolf put it: “Teachers would be fearful of legal repercussions, and therefore resistant or reluctant to create an affirming or inclusive classroom environment.”
And by outsourcing enforcement to vigilante parents rather than leaving it to the state—just as Texas legislators did with their abortion ban, in a tactic blessed by the Supreme Court—Florida lawmakers have ensured that no one can challenge the law in federal court before it’s enforced.
If the Florida bill passes, Wolf believes educators will be deterred from bringing up any topic that touches on LGBTQ lives, even the most important events in their own communities. He lives near Pulse, the gay nightclub in Orlando where a gunman killed 49 victims in 2016—a massacre Wolf escaped and survived. In a state that prohibits classroom discussions about sexual orientation, Wolf wonders, “can we even talk about the things that we have to talk about, the things that we must be talking about, in order to make our society better and keep people safe?”
The legislator who introduced the Florida bill, Republican Joe Harding, said in a committee hearing that the bill would not outlaw discussions about events in LGBTQ history such as the Pulse massacre. But in jurisdictions that have passed bans on the teaching of critical race theory, emboldened parents have pushed for the elimination of much more, including all literature that so much as mentions race or states the facts of Black history. In Tennessee, a group of right-wing parents have fought to ban straightforward children’s books about Ruby Bridges, the 6-year-old who became the first child to integrate an all-white school in Louisiana, and the Black opera singer Marian Anderson.
No matter how narrowly these bills are written, motivated parties will use them to justify the suppression of educational materials that concern the lives of communities that have faced discrimination. Laws that censor speech about race, gender, and sexuality are not designed to be employed gently, with nuance, on a strictly limited range of topics. They are bludgeons, intended to wipe out the entire range of subjects—and people—that offend the sensibilities of those in power.