State legislation that impacts the LGBTQ community is rarely discussed outside of the halls state capitols. The national war of words has erupted over Florida's Parental rights in Education bill, which critics call the "Don't Say Gay” bill.
Leaders of global corporations and editorial boards of major newspapers have all weighed-in on the legislation in recent weeks. Some called it "deeply concerning" while others called it "noncontroversial." The View's hosts pondered the issue for seven minutes last month. Bravo's Andy Cohen dedicated last week's "Watch What Happens Live” segment to criticizing the measure.
Even President Joe Biden, who has not been a part of recent state bills regarding LGBTQ people, has used the White House's bully pulpit to condemn the Florida bill and its sponsors. Even the bill appears to have caused an rift between Florida Governor. Ron DeSantis has stated he supports the bill, but has not signed it yet. Disney CEO Bob Chapek.
HB1557 supporters claim it will give parents more control over their children's education vindicating that they are "parental authorities." However, opponents claim it will unfairly target the LGBTQ community, particularly trans students, and " pretending it solves a problem that doesn’t exist.
Which one is it, then?
First, it is true that the "Don't Say Gay” bill doesn't actually say "gay" anywhere. The bill passed Florida's Senate last Wednesday and the state's House of Representatives February. However, it does contain the terms "sexual orientation", "gender identity" twice.
Legal experts disagree, however, and say that the bill's prohibition of the word "gay," is not a distraction.
Charlton Copeland, a University of Miami School of Law professor who studies gender identity and sexual orientation, said that while critical race theory is not taught in schools, it hasn't stopped people such as the governor of Florida using the term "critical race theory" in their political maneuverings. "The "Don't Say Gay" moniker refers to a political interpretation of the situation.
The bill's core argument revolves around branding.
The bill's sponsors insist that it will not bar students from discussing their LGBTQ families, or prohibit classroom discussions about LGBTQ history. This includes events such as the Pulse nightclub attack in Orlando, which resulted in the death of a number of gay men. They argue that the bill would prohibit the "instruction” of sexual orientation and gender identity.
However, the text clearly states both.
The bill's preamble states that the authors intend to ban "classroom discussion on sexual orientation and gender identity." However, later in the bill, it says that school personnel or third-party teachers may not be allowed to instruct students about sexual orientation and gender identity.
Clay Calvert, a Professor at the University of Florida Levin College of Law and a specialist in freedom of expression, said that "I could understand why people are confused."
Calvert said, "I don't know why it's still up there but that's part of the binding legislation DeSantis would have signed," referring to the "discussion” in the bill's Preamble.
Calvert stated, "Basically, all that language is just tellings us what the bill about," and claimed that the preamble to the bill's text would have no real-life implications.
Copeland was not in agreement.
Copeland stated, "One of my first things I would have said to my students in fall, when I taught them about statutory interpretation and one thing that courts certainly do is to look at that preamble to determine, 'Well... what's that term called?instruction'?" "And the preamble seems have a conception about what is prohibited that's much wider than we might consider a narrow conception of 'instruction'."
He said, "A good lawyer at a local school district is going to do exactly the same thing as a good attorney in the state education department."
It is still unclear, however, what the "instructions" regarding sexual orientation and gender identity mean. The bill does not contain a definition for this type of lesson.
Calvert stated that teachers could legitimately be sued if they teach a variety of lessons in the classroom, such as lessons about same-sex marriage and the history of the AIDS epidemic.
Calvert stated, "If a student raises questions that are not part of the lesson plans or instructional plans of a teacher but that question ties into sexual orientation or gender identification, then what can the teacher say at this point?"
Calvert suggested that Calvert answer a student's question on how same-sex couples can marry.
He asked, "Am I teaching what the Constitution says in this case or am I teaching sexual orientation?"
The sponsors of the bill did not respond to repeated questions about examples of "instructions" for sexual orientation and gender identity. A Democratic lawmaker asked Joe Harding to describe what instruction of sexual orientation and gender identity might look like. The Republican state Representative was asked to do so by Joe Harding, who is one of the bill's sponsor.
"Vagueness can be used for specific purposes. Copeland stated that people aren't inflexible because they don't know enough. "Sometimes they are intentionally vague in order to move the location of the political fight."
In recent weeks, fierce debate has erupted over which age groups the bill should apply to.
According to the text, teachings about sexual orientation and gender identity will be prohibited from kindergarten through grade 3, or in a way that isn't age-appropriate or developmentally appropriate for students according to state standards.
Critics claim that the language of this provision could expose districts and educators to lawsuits by parents who feel any discussion about LGBTQ people or issues is inappropriate, regardless of age.
Experts in legal matters agree that parents' interpretation of what is and is not "age appropriate" will be accepted by the court.
Calvert stated that it was still to be determined what "age appropriate" or "developmentally appropriate" means.
The bill's final page contains a clause that would require the Florida Department of Education "to update state standards in accordance with this act" by June 30, 2023.
Calvert stated that the Department of Education has the ability to review and update its standards regarding what age appropriate is, which will then influence how the bill is implemented. It could go beyond third grade.
Copeland stated that even the threat of lawsuits would be enough to complete the bill's work.
He said that "this kind of ever-present threat of being forced to defend oneself, or a school district needing to spend resources will have its own chilling effect."
The legislation will take effect July 1 if it is signed by DeSantis. He is widely believed to be interested in a run for the 2024 GOP presidential nominee.
