14 States Claim Florida’s ‘Don’t Say Gay’ Law ‘Does Not Discriminate’ And Want It To Be Upheld

Topline

A coalition of 14 GOP-led states wants a federal court to uphold Florida’s Parental Rights in Education Act—known as the “Don’t Say Gay” law—signaling that more states could be on board with passing their own versions of the law despite all the controversy it’s drawn in Florida.

Members and supporters of the LGBTQ community attend the “Say Gay Anyway” rally in Miami Beach, on … [+] March 13.

AFP via Getty Images

Key Facts

State attorneys general, led by Texas, asked on December 7 to file an amicus brief defending Florida’s HB 1557 against a lawsuit brought by students, parents and teachers in Florida, who argue the law is discriminatory and violates the First and Fourteenth Amendments.

HB 1557, which was signed into law in March, prohibits any “classroom instruction” involving “sexual orientation or gender identity” through the third grade, any discussions about it in older grades if it’s “in a manner that is not age appropriate or developmentally appropriate,” and requires schools to disclose information about students to their parents like their gender identity or sexual orientation as long as it won’t result in “abuse, abandonment, or neglect.”

The Republican-led states argue the law is in line with other state laws that “regulate primary education curriculum by imposing restraints on what teachers can say,” which means it doesn’t violate the First Amendment as the plaintiffs claim, and Florida has a “duty” to “[prevent]

The states argued HB 1557 “does not discriminate” against the LGBTQ community and the plaintiffs didn’t provide strong enough evidence to show that it does, claiming that nothing in the text of the law itself is overtly discriminatory.

The lawsuit points to a number of public statements made by lawmakers and state officials to argue that the law was passed with anti-LGBTQ intent, but the GOP states argued that the statements don’t show “hostility toward LGBTQ persons,” as the plaintiffs claimed, and that “the statements of a few legislators cannot serve as a basis for imputing the motivations of all.”

Statements that the plaintiffs point to in the lawsuit include Governor Ron DeSantis (R) saying, “woke gender ideology have [sic] no place in the schools,” a state senator saying, “part of our concern for the well-being of our children” is “a big uptick in the number of children who are coming out as gay or experimenting,” and another senator saying restricting classroom discussions was justified because “LGBT is not a permanent thing.”

Full List

The states that filed the amicus brief are Texas, Alabama, Alaska, Arkansas, Georgia, Indiana, Kentucky, Louisiana, Mississippi, Nebraska, Oklahoma, South Carolina, Virginia and West Virginia.

Chief Critic

Attorneys general in Democratic-led states filed their own amicus brief in the case in August, which instead asks the court to strike down HB 1557, describing the law as a “radical outlier” and arguing that “Florida’s recent actions are far outside the bounds of ordinary educational decision making.” “No other state educational law sweeps as broadly as Florida’s or targets the LGBTQ community in the same way,” the states and Washington, D.C., argued, saying the policy will inflict “immediate, continuing, and real injuries.”

What To Watch For

More states to pass their own versions of the “Don’t Say Gay” law. Outside of Florida, laws that censor school discussions of LGBTQ topics in some form are already in place in Alabama, Texas, Oklahoma, Louisiana and Mississippi, according to the Movement Advancement Project, a nonprofit think tank that tracks state-level LGBTQ policies. Copycat bills have also been under consideration in a number of other states, though some, in states like South Carolina and Iowa, have so far failed to move forward. House Republicans have also introduced a national bill that would go beyond state laws to ban federal funds from being spent on “any sexually-oriented program, event, or literature” to which children under the age of 10 would be exposed. The legislation specifically mentions things like drag queen story hours and “discussions of sexuality, sexual orientation, transgenderism, and gender ideology,” and could affect schools that receive federal funding or public spaces like museums that receive federal grants. While the bill is unlikely to pass, given that Republicans will only have a narrow House majority next term and Democrats will control the Senate, LGBTQ rights advocates cited by The 19th said the bill could encourage states to pass their own version of the legislation.

Key Background

Florida’s HB 1557 has drawn national controversy since lawmakers were considering it in the spring, attracting widespread criticism from celebrities, government officials in other states and companies. Disney is most notably still in a battle with the Florida government as a result of its criticism of the law, which only came after the company came under widespread pressure from the public and its own employees to take a stand against it. HB 1557 took effect in July and has reportedly sparked changes at schools and confusion among teachers on what they can and cannot say, and Florida officials enacted a subsequent rule in September that would revoke licenses of any teacher who violates the law. The lawsuit that the amicus brief was filed in is one of several that have challenged HB 1557 in court, though none have yet been successful in blocking the policy. A federal district judge dismissed the lawsuit the GOP states are opposing in September, saying the plaintiffs hadn’t shown enough evidence to prove they had standing to bring the lawsuit, but the plaintiffs filed a new version of the lawsuit that addressed those concerns, which is now pending.