FL LGBTQ students, parents, and advocacy group sue state over ‘Don’t Say Gay’ law
Group cites ‘danger zone created by a state-mandated censorship code’
Students protesting at the Florida Capitol. Mar. 3, 2022. Credit: Danielle J. Brown
Statewide LGBTQ advocacy group Equality Florida filed a federal lawsuit Thursday against Gov. Ron DeSantis, state education officials, and others over a new law aiming to limit conversations about LGBTQ people in classrooms.
The lawsuit arrived in the U.S. District Court for the Northern District of Florida, claiming that the newly signed law, HB 1557, violates the U.S. Constitution, including discrimination protections under the First Amendment, which is related to freedom of expression, and the Fourteenth Amendment, which says no state can deprive any person of life, liberty, or property.
The plaintiffs include LGBTQ students and families, a teacher, Family Equality — a nationwide LGBTQ advocacy group based in New York — and Equality Florida.
The defendants include DeSantis, the Florida Department of Education, members of the state Board of Education, Education Commissioner Richard Corcoran, and the local school boards of Manatee, Sarasota, Miami-Dade, St. Johns, and Jackson counties.
The new law allows parents to sue if a school district withholds information about their children’s well-being or exposed them exposed to classroom instruction about sexual orientation or gender identity deemed not “age-appropriate.” The bill expressly bans such discussions for kids in kindergarten through third grade, but could capture instruction and counseling through high school.
The law’s official title is “Parental Rights in Education,” but LBGTQ advocates have dubbed HB 1557 “Don’t Say Gay.” Supporters of the legislation claim that the new law protects a parent’s right to direct the upbringing of their children and that some topics are best discussed at home.
“The effect of HB 1557 is thus to chill the rights of teachers, students, and school officials, who, like any rational person, will avoid the danger zone created by a state-mandated censorship code,” according to the lawsuit.
Bar on enforcement sought
The suit asks the court to strike down the law and prohibit Florida’s education officials from enforcing it.
Equality Florida previously stated plans to sue should any student be harmed by the legislation when it cleared the Florida House and Senate during the 2022 legislative session.
The law firm representing Equality Florida is New York-based Kaplan Hecker & Fink, which posted on twitter Thursday: “We’re proud to represent our extraordinary plaintiffs in challenging Florida’s discriminatory and unconstitutional #DontSayGay law.”
Vague language and discrimination
Critics say the new law’s language is unclear.
The wording reads: “Classroom instruction by school personnel or third parties on sexual orientation or gender identity may not occur in kindergarten through grade 3 or in a manner that is not age-appropriate or developmentally appropriate for students in accordance with state standards.”
But none of these terms are defined, as the lawsuit points out:
“‘Classroom instruction’ is left undefined, as are ‘sexual orientation’ and ‘gender identity.’ Nor does the law define the actors whose speech is restricted: ‘school personnel’ could span from teachers to principals to guidance counselors, while ‘third parties’ ostensibly reaches anyone outside of the school personnel context, including parents and other family members (and perhaps even students).”
As to parents’ suing, the dynamic will lead to “open season” on Florida school boards, finding education officials under a constant threat of paying legal fees and costs if they do not accede to parent demands.
The suit claims that the new law uses “sweeping language” that is not clear on what is prohibited, while inviting “arbitrary and abusive enforcement.”
The suit also claims that there are implications towards discrimination against LGBTQ people and topics, saying that, “this effort to wipe out LGBTQ identity constitutes illegal discrimination, plain and simple.”
“Presented with vague prohibitions under the threat of litigation, schools and educators will be chilled from discussing or even referencing LGBTQ people, and LGBTQ students will be stigmatized, ostracized, and denied the educational opportunities that their non-LGBTQ peers receive,” according to the lawsuit.
The suit also highlighted several efforts during the 2022 legislative process to adopt language that would be more LGBTQ-friendly, with every attempt to make the bill more inclusive being rejected.
“The fact that these amendments failed further demonstrates the law’s true purpose,” the suit reads.
Even if the law hasn’t taken effect yet, some of the plaintiffs have already seen its potential chilling effects, according to the lawsuit.
For example, Zander Moricz, an 18-year-old gay plaintiff attending school in Sarasota County fears that some school lessons he’s had in the past would no longer be permitted.
The suit says: “For instance, last year during a discussion on the role of chromosomes in gender identity, Moricz’s biology teacher explained the difference between sex and gender… Likewise, in his Government class this year, Moricz has discussed H.B 1557 and the risks already facing LGBTQ youth, as well as issues like LGBTQ representation in government.”
Moricz’s teachers have indicated they may need to remove pride flags, symbols of LGBTQ inclusivity, from their classrooms, according to the lawsuit.
An 11-year-old transgender girl and her family fear that the effects of the bill will “lead to bullying and ostracization.”
Her mother is also “worried that she will no longer be able to have conversations at the start of each school year with teachers and school officials to try to mitigate the risk to her child, and to make sure she can feel safe and worthy and learn like every other student,” according to the lawsuit.
At a press conference in Palm Beach County Thursday, DeSantis responded to a reporter’s question on the new lawsuit, saying that he doesn’t think that “any of the legal claims have merit.”
“You’re challenging it legally – are you arguing that there is a constitutional right to have classroom instruction for first graders about things like transgender and gender ideology? I can’t imagine that a court would accept that, clearly an appeals court wouldn’t accept that,” DeSantis said.
He focused primarily on the challenge regarding First Amendment violations.
“So these are policy decisions, I don’t think it’s anything that’s invoking (the) First Amendment because schools, states and localities have the ability to set curriculum in public schools. We do that all the time. This is not new.”
He added: “Now as a First Amendment matter you can go on the street corner and say whatever you want about those issues, but in terms of when we get in school, you know, we have certain standards and we want to uphold those standards.”
He also claimed that the new law does not regulate student speech.
DeSantis noted that the law does not take effect until July 1, 2022, so, “You can’t say that anyone’s been injured by it because it has not because it has not actually been put into effect.”
That said, Moricz, the 18-year-old gay plaintiff attending school in Sarasota County has already become troubled by what’s happening at his school. And the lawsuit cites similar examples.
But DeSantis said Thursday, “The bottom line is: We are going to defend this vigorously.”
The lawsuit arrived on the annual International Transgender Day of Visibility. One of the students in the lawsuit is a transgender girl in fifth grade.
According to GLSEN (Gay, Lesbian & Straight Education Network), an advocacy group focused on protecting LGBTQ students, Transgender Day of Visibility aims to highlight transgender activism and the accomplishments of transgender people.
In recognition of the day, U.S. Secretary of Education Miguel Cardona has arrived in Orlando for LGBTQ-focused roundtables and discussions on the expected damage from HB 1557.
The Biden Administration has criticized the new law, and Cardona said earlier that the federal Department of Education’s Office for Civil Rights will be “monitoring this law upon implementation to evaluate whether it violates federal civil rights law.”
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