“Don’t Say Gay” Law: The Constitutional Conflict Between Parental & LGBTQ Rights
The classroom is a hotspot that facilitates intellectual curiosity, relationship building, and character development from early childhood to young adulthood. However, it can only succeed as a safe, welcoming space for all students and ideologies. What happens if this is compromised? On March 28, 2022, Florida Governor Ron DeSantis signed the “Parental Rights in Education” bill into law, which sparked controversy by placing greater emphasis on parental authority at the cost of protecting LGBTQ+ rights. The morality and constitutionality of these two positions will be further discussed to analyze how the bill emerged and the implications of its implementation.
Prior to diving into the dissension, it is important to understand the characterizing language and key passages of the law. Firstly, the law places a constraint on classroom instruction of gender and sexuality in all grades. Instruction is specifically prohibited from kindergarten through third grade, which resulted in its “Don’t Say Gay” nickname, despite it never explicitly mentioning the word “gay.” A particularly worrisome aspect of the law is its vague language, particularly with the repetitive usage of “classroom instruction” and “classroom discussion.” With such broad terms and no actual definition or example to demonstrate this new educational framework, the law has the potential to limit or prohibit teachers from utilizing history books featuring LGBTQ+ figures and discussing familial structures of students with gay parents, among many other now-problematic scenarios.
Moreover, the usage of highly subjective language, such as “age appropriate or developmentally appropriate” leaves a lot of room for potential conflict of interpretation between parents, teachers, and students. Critics of the law argue that this vagueness is intentional in order to reframe politics concerning the LGBTQ+ community. The unclear language and conflicts that will continue to arise from it has great potential to delay the learning process. This creates compromised classrooms that would hinder the education of all students, regardless of their relationship with the LGBTQ+ community.
Two other major takeaways from this law are its implications on access to health services and confidentiality in schools. The law gives parents the right to opt children out of health and counseling services, which often results from parental stigma surrounding personal issues that can be associated with shame, like questioning aspects of one’s identity. However, this could deny kids the opportunity to receive support when they need it most. Students—especially those dealing with issues regarding their gender identity and sexual orientation—need to have accessible outlets and safe spaces available to them outside of the household. The law also requires schools to notify parents when their children utilize these services, with the exception of suspected cases of abandonment, abuse or neglect. This generated criticism from counselors about confidentiality concerns, which could further discourage students from seeking the support that they may need and not be able to receive anywhere else.
The final defining aspects of the law outline how it holds schools accountable while also augmenting parents’ rights in determining educational affairs. It gives parents the authority to sue schools if they violate the vague framework outlined in the law—lawsuits that districts would have to pay for. This concept of holding schools accountable is seen in other debates over school curriculum, such as ongoing conflict over the instruction of critical race theory. In order to adhere to these new standards, Florida would have to rewrite the current framework, adopted from the American School Counselor Association, which outlines a counseling program that “advocates for and affirms diversity in sexual orientation, gender, gender identity/expression, family type, and many other identity categories.” It is yet to be seen if the law has enough influence to supplant this affirming language, and the consequences of doing so.
These foundational pillars of the law have initiated substantial controversy driven by moral arguments about how it unfairly targets the LGBTQ+ community, which could prove detrimental to the youth. This backlash has been particularly profound in civilian protests primarily led by Democrats and LGBTQ+ supporters, who believe that the law will result in increased bullying and severe impacts on the mental health of marginalized students. Moreover, 193 companies have signed the Business Statement Opposing Anti-LGBTQ State Legislation to signify their allyship with the LGBTQ+ community and their opposition to legislation similar to the “Don’t Say Gay” law. President Biden has also condemned the law for its “hatefulness” along with numerous celebrities, such as Oscar hosts Amy Schumer, Regina Hall, and Wanda Sykes.
Criticism is also rampant on social media advocacy platforms, such as @impact on Instagram, With a goal of spreading “digestible and socially-impactful content” to its 1.9 million followers, it has been vocal about advocating for and reframing the narrative around LGBTQ inclusive education. Social media also housed civilian outrage against public figures that did not denounce the legislation, notably the Disney corporation. In response, Disney CEO Bob Chapek pledged five million dollars on behalf of the company to organizations that protect LGBTQ+ rights, but still faces criticism for the lack of initial action.
While this article places an emphasis on Florida’s law, it is not unique in its nature. The free-speech organization, PEN America, has identified fifteen other proposals in nine states such as Kansas, Tennessee, and Indiana. These bills share similar goals of holding teachers liable for discussing issues regarding identities within the LGBTQ+ community. Despite it being largely associated with LGBTQ+ rights and politics, these actions to limit identity-based speech in schools conveys a similar sentiment as objections to implementing critical race theory (CRT) into school curriculum. This criticism has manifested into proposed legislation by numerous Republican lawmakers to limit the teaching of CRT in K-12 public schools, including discussions about historical racism, racial equity, and white privilege.
These proposed limitations on schools raise the question of whether the bills are actually constitutional or a legislative overstep. There have been a number of Supreme Court cases that deliberated the extent to which the First Amendment applies in school settings. Notably, Tinker v. Des Moines (1969) held that First Amendment rights apply to students of every age. Yet, the argument of letting parents have more control over the type of education their children receive currently prevails, leaving teachers in legitimate fear of being sued.
With so much at stake for the LGBTQ+ community held in the lines of such vague terminology, the opposition against the “Parental Rights in Education” law has been unyielding. While Governor DeSantis signed the legislation, it is worth reflecting on Supreme Court precedent regarding LGBTQ+ rights to further contemplate its constitutionality. In particular, Romer v. Evans (1996) held that laws could not single out LGBTQ+ people to deprive them of their rights. The law’s vagueness lends itself to the interpretation of singling out the LGBTQ+ identity from classroom discussions and “does not solve any problem that exists,” says Florida State Representative Carlos Guillermo Smith. However, Governor DeStanis backs the law’s support by claiming it ensures children are sent to school “to get an education, not an indoctrination.” Among the numerous speculations about the legislation’s future, one should remain a top priority: will this law truly enhance the education of the nation’s youth? Or will it only compromise the progress made in protecting future generations of the LGBTQ+ community?
Ashley Ganesh is a freshman at Brown University, concentrating in Business Economics. She is a staff writer for the Brown University Undergraduate Law Review and can be contacted at ashley_ganesh@brown.edu.