Red states and blue states choose sides in legal battle over Florida’s “Don’t Say Gay” education law

By Jim Saunders ©2022 The News Service of Florida

TALLAHASSEE — The legal battle over a Florida law that restricts classroom instruction on gender identity and sexual orientation is pitting red states against blue states.

Republican attorneys general of 14 states last week sought approval to file a brief supporting Florida in a fight about the new law. That came after Democratic attorneys general from 15 states and the District of Columbia this summer filed a brief supporting the bill’s challengers.

The law, which drew fierce debate during this year’s legislative session, prevents instruction on gender identity and sexual orientation in kindergarten through third grade and requires that such instruction be “age-appropriate … in accordance with state academic standards” in older grades.

Republican lawmakers titled the measure the “Parental Rights in Education” bill. Opponents labeled it the “Don’t Say Gay” bill.

The GOP attorneys general last week filed a motion to submit a brief in U.S. district court in Tallahassee. They also attached a copy of the brief, which said “a growing contingent of teachers and school administrators are promoting sexual content to children and encouraging them to hide it from their parents.”

“Parents have a strong interest, and thus the state has a strong duty, in preventing children from being exposed to sexual instruction that is not age-appropriate,” the friend-of-the-court brief said. “The law does not violate anyone’s right to expression or receive information, does not discriminate and is not unconstitutionally vague.”

But the Democratic attorneys general in August pointed to issues such as speech rights.

“In short, Florida’s extreme approach implies the absence of a legitimate pedagogical purpose, rendering its restrictions on speech and targeting of a minority highly suspect,” the brief said. “And (the 15) states’ experiences show that reasonable policies are available that include LGBTQ people, foster free speech, and accommodate parents. Florida’s turn, instead, to restricting speech and targeting a minority supplies additional evidence of the act’s unconstitutionality.”

The filings came in a case that includes as plaintiffs two students in Miami-Dade County and Manatee County schools, two lesbian couples with children in Miami-Dade County schools, a woman with children in Orange County schools and two teachers in Broward County and Pasco County schools. The defendants are the State Board of Education, the Florida Department of Education and the school boards in Broward, Manatee, Miami-Dade, Orange and Pasco counties.

The plaintiffs filed a revised version of the lawsuit Oct. 27 after U.S. District Judge Allen Winsor dismissed an earlier version. The state and school boards in late November filed renewed motions to dismiss the case. A separate challenge to the law is pending in federal court in Orlando.

Opponents of the law (HB 1557) have argued it is discriminatory and violates speech rights. Also, the revised lawsuit filed in Tallahassee cited an Oct. 19 decision by the State Board of Education to approve a rule that could lead to teachers losing their licenses for violating the law.

“The intended impact of this law is apparent,” the lawsuit said. “It seeks to undo the equal inclusion of LGBTQ people and issues in Florida’s schools and to impede policies requiring equal treatment and support of LGBTQ students. Presented with vague prohibitions under the threat of litigation, schools and educators have been and will be chilled from discussing or even referencing LGBTQ people, and LGBTQ students have been and will be stigmatized, ostracized, and denied the educational opportunities that their non-LGBTQ peers receive.”

But Florida Republicans and the GOP attorneys general say the state can determine what is taught in classrooms.

“Florida’s HB 1557 fits well within the collection of state laws that regulate primary education curriculum by imposing restraints on what teachers can say,” the attorneys general brief said. “Indeed, many states have laws that go a great deal further in regulating what teachers may (or must) say in the classroom.”

The brief was spearheaded by Texas Attorney General Ken Paxton and was joined by attorneys general of Alabama, Alaska, Arkansas, Georgia, Indiana, Kentucky, Louisiana, Mississippi, Nebraska, Oklahoma, South Carolina, Virginia and West Virginia.

The brief this summer was filed by attorneys general from California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New York and Oregon, along with the District of Columbia.