A pivotal lawsuit this week in Florida — related to classroom instruction of sexual identity and gender orientation — could have heavy implications for what the discussions will sound like when it comes to free speech and the First Amendment.
Gov. Ron DeSantis claims that the new law he signed, referred to by critics as “Don’t Say Gay,” does not affect free speech. He’s a Harvard Law School graduate. But LGBTQ advocates claim that the vague nature of the law makes boundaries of acceptable instruction unclear, leading to a chilling effect in Florida’s public schools.
As the lawsuit against the governor and education officials makes its way through the court system, a fundamental debate for attorneys will be whether the new law infringes on a student or teacher’s freedom of speech to talk about matters pertaining to the LGBTQ community.
Plaintiffs include LGBTQ students and families, as well as the statewide LGBTQ advocacy group Equality Florida and New York-based LGBTQ advocacy group Family Equality.
The law being challenged is officially entitled “Parental Rights in Education,” but it’s been dubbed “Don’t Say Gay” or “Don’t Say Gay or Trans.” 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 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.”
‘This law does not chill speech’
For those who need a refresher, here is the plain text of the First Amendment:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
Freedom of speech and the First Amendment is of concern in the lawsuit filed Thursday, though there are other claims such as the Fourteenth Amendment, which says no state can deprive any person of life, liberty, or property.
In an email to the Phoenix, DeSantis’ communication director, Taryn Fenske, told the Phoenix that the lawsuit is “a political Hail-Mary to undermine parental rights in Florida.”
“Perhaps the most baffling charge is that this law violates the First Amendment,” Fenske said. “This law does not chill speech – instead it returns speech on these topics to the parents. The law does not prohibit student-prompted discussion in the classroom. The law does not prohibit teachers from having opinions, lifestyles, or advocacy in their personal right on their own time, and this law does not prohibit teachers from responding to student questions.”
DeSantis himself echoed this interpretation on Thursday, saying that “it’s (the new law) really focusing on what schools — what’s appropriate for schools to do. It doesn’t even regulate student speech…But the bill does provide substantive protections for parents.”
“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 on an appeal court wouldn’t accept that,” he said at the Thursday press conference.
DeSantis and supporters of the bill largely focus on the younger grades, but the bill potentially has implications for older grades.
The legislation says that classroom instruction on gender identity or sexual orientation may not occur in kindergarten through 3rd grade “or in a manner that is not age-appropriate or developmentally appropriate for students in accordance with state standards.”
Meaning there are limitations on these discussions for older students too — not just elementary kids.
‘Chilling effect’
A large component of the lawsuit claims that the chilling effect of the bill does infringe on free speech rights of students and teachers, among other concerns.
The lawsuit claims that the new law is “overbroad” and not “narrowly tailored” due to a lack of clarity in the legislative language, potentially infringing on the student plaintiffs’ “rights to receive information and ideas, and their right to freedom of expression.”
“This overbreadth has a chilling effect on the behavior and speech of students…resulting in the self-censoring and intentional avoidance of a broad, sweeping category of protected speech,” the lawsuit says.
The lawsuit claims that the new law restricts the ability of student plaintiffs “to discuss topics related to sexual orientation and gender identity in class and related settings, and even restricts their ability to self-identify.”
The unclear boundaries could also infringe on teachers’ speech and behavior, saying that “teachers are discouraged from providing students with accurate information about sexual orientation and gender identity for fear of violating the law.”
LGBTQ advocates have been vocal about the chilling effect in classrooms.
During a virtual press conference Friday on the new law, Cathryn Oakley, a senior staff member of the Human Rights Campaign, responded to DeSantis’ claim that the bill doesn’t involve free speech.
“Just because Ron DeSantis said it, doesn’t mean it’s true,” Oakley said. “Because this bill is so vague, and because it’s so overbroad, the chilling effect is an incredibly important aspect of this, because if the bill was only to be about curriculum, that’s not actually what it says, and it’s certainly already not even what the impact is.”
Oakley continued: “If that’s what we’re talking about, is teachers are being reported for having stickers, for having t-shirts. It’s not just about what the law was quote-unquote intended to do. Which is, by the way, its own conversation. Because if you look at the legislative history around this bill, this bill is absolutely intended to marginalize LGBTQ youth, to take conversation about LGBTQ things out of the classroom.”
The lawsuit highlights cases of teachers and schools preemptively restricting conversations or even classroom instruction on LGBTQ matters in light of the passage of the law.
“There were limiting amendments that were introduced and then rejected. So it is, it is clear that the overbroad and extremely vague language here was an intentional choice made by the proponents of this bill. And therefore, they have to own the consequences. And the consequences include, clearly, major implications for teachers who do have free speech rights, even within the classroom. So, I think that is incredibly important to say and I, for one, do not take Gov. DeSantis at his word in terms of how the courts are going to interpret pieces of legislation. He is absolutely incorrect on this one,” Oakley said.
Free-speech advocacy group PEN America referred to the new law as an “educational gag-order” in a post from earlier this week. The organization identifies such legislation as appearing to be “designed to chill academic and educational discussions and impose government dictates on teaching and learning.”
–Danielle J. Brown, Florida Phoenix
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Mark says
The “plain language” of the second amendment say the right to bear arms shall not be infringed. No amendment is absolute in today’s “democracy”. Even though we don’t live in a democracy. Public schools were established to teach not indoctrinate. Teachers in Florida are not allowed to talk about their personal lives to students, or religion. They are not the students parents nor are they their replacement. Do I want to hear about your life problems or your mental health issues when I want to hear about history? NO.Talking to a 5 year old about sex is a perversion! It’s called grooming and you should be locked up!
Florida Voter says
Be aware, this bill should be called the “Don’t Say Straight” bill.
From my perspective you seem to be mistaken:
According to this law, a K-3 teacher CANNOT refer to “mom and dad” since that’s indoctrinating (teaching) sexual orientation. A K-3 teacher CANNOT teach gendered pronouns since that’s gender identify. At least, if you actually follow what is written. That’s not a person’s “life problems” or “mental health.”
Remember:
Cisgender male/female is gender
Heterosexual (and heterosexual relations) is a sexual orientation.
DeSantis needs to repeal the “Don’t Say Straight” bill.
BTW, I spoke to my kids about “good touching and bad touching.” That’s not perversion or grooming; that’s good parenting.
Mark says
How is referring to mom and dad teaching sexual orientation? Name me a single human that doesn’t have a mom and dad. Try as you might you can’t. Where in the bill does it say “don’t say gay”? Have you even read the bill?
“3. 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.”
Where is “don’t say gay”? Is it before or after the “or”? It’s like the second amendment, no one reads the entire text, they spin what they want to spin.
Florida Voter says
Mark, thank you for reading my entire post. In fact, thank you for reading the first line.
I agree that it doesn’t say “don’t say gay.” It DOES say that in K-3 instruction “on sexual orientation or gender identity may not occur.” Referring to Mom and Dad is gender identity and sexual orientation. Using gendered pronouns is teaching gender identity. In fact, having bathrooms labeled “boys” and “girls” is teaching gender identity, since it requires a child to identify as a “boy” or a “girl,” (although that’s probably not actually IN the classroom).
Do you understand that heterosexual is a sexual orientation? Do you understand that calling a child “he” or “she” is defining a gender identity for that child? As I said at the beginning of my pervious post and again at the end, this bill should be called the “Don’t Say Straight” bill (now law, I guess).
Your first question is answered above. To answer your second question, we need some definitions. I would take “Mom” to be a female parent and “Dad” to be a male parent. In that case, LOTS AND LOTS of people don’t have “a mom and dad.” Same-sex marriage and adoption is legal in this state. Same-sex marriage is legal even if one of the individuals already has a child. I can’t consider a sperm donor to be a “dad.”
Lastly, you’re right in that no one reads the 2nd amendment. Otherwise, firearms for private citizens would be outlawed with the exception of those in a “well-regulated militia” (the context refers to self regulation, not governmental, but it’s still an organized citizen-army).
Mark says
The second amendment does not say “those in a well-regulated militia”.
“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”
1a : a part of the organized armed forces of a country liable to call only in emergency The militia was called to quell the riot. b : a body of citizens organized for military service. 2 : the whole body of able-bodied male citizens declared by law as being subject to call to military service. (Google Search)
Nowhere does it say you must be in a militia.
Because a free state needs to be able to secure itself, the right of the people to arm themselves shall not be infringed.
Nothing difficult here.
Skibum says
I agree with you that a teacher or non-parental individual trying to discuss sex with a 5 year old is obviously unacceptable. But if you buy that nonsense about what this new law is about, you clearly have swallowed the cool aid without engaging any thought process about the consequences of such a law. Is this law needed now? When was the last time you heard that teachers are having discussions about sex with 5 year olds??? Duh, come on now, that is pure garbage, and you probably know it unless you are a complete moron. It just doesn’t happen. Here is the reality, Mark. Not every family unit consists of a man and woman. Same sex marriage has been the law of the land for a number of years now, and (shock) there is such a thing as two dads or two moms for parents. This law prohibits kids with two same sex parents from having a completely age appropriate conversation in the classroom about what the student and their moms or dads did for fun over summer vacation, etc. when the other kids are allowed to have that conversation as a result of being asked by the teacher. Why would the state enact such a law to intentionally discriminate against kids with two gay parents? Simply because the gov is playing to his base and using misinformation as the latest attempt to gain sympathy and votes for the upcoming election. And this type of law HURTS families, and does nothing to protect kids from conversations about sex at that age in the classroom that simply are NOT happening anyway.
Mark says
While some of the examples you have listed may have merit (although I don’t agree) The fact is teachers should not be discussing sexual orientation/identity with young children, period. Parents is a very ambiguous term. Everyone has a mother and a father. How about teaching that. Just because the world is now screwed up and full of mentally ill people doesn’t mean we need to make more people mentally ill.
Skibum says
I don’t disagree with your premise, but I hope you would agree that while all human beings obviously had both a biological mother and father, not every family unit consists of the biological parents due to divorce, or maybe they were unmarried and just conceived a child, or the mother was raped, etc. There could be other reasons. I certainly don’t want to have teachers discussing sexual issues including orientation with young children, but it would be wonderful if the STATE would have simply recognized that there are many young school children with two dads or two moms, and the effort, whether intended or not to silence or prohibit those children from talking about activities, vacations or whatever that included their same-sex parents are just as valid as the same natural conversations with those children who have a mom and dad in their current family. That is fair and all that we should expect from state laws, but unfortunately that is not what was signed into law, hence the discrimination and unfair and unequal treatment of young children who need to know their same-sex parents are just as valid in society as the rest of the kids in school.
Mark says
You should have no problem with the bill. It is a parent’s right bill, whether they be male, female, gay, black, white, or even a mentally ill person. Talking such things to young children does not have a place in schools and the “parent” “parents” now have a way to deal with it if it is improperly taught in the schools thanks to this bill. It also delineates to the educators how to set up the teaching this subject matter.
Kathryn says
You’ve had the answers to every “point” you’ve raised spelled out for you a million times and you’re continuing to choose to be obtuse. “We’ll tell you what to think” Republican business as usual.
Mark says
None of the “answers” apply to the law. You should try reading the law before you join the opposition.
Michael Cocchiola says
Mark… sounds like you’ve been indoctrinated by… Fox. Guess Fox can teach but teachers can’t in the Qasphere.
Jimbo99 says
Frivolous lawsuit nonsense in 2022, the whole premise behind “Say Gay” lawsuits is for there to be those divisions to self identify. The very concept of classifications into defined groups kills off any child’s creativity & uniqueness. Children are human beings, unique as science claims snowflakes are. And the term Snowflake is triggering dog whistle in the slang sense of the word. I used it in reference to the icy Winter precipitation not the dog whistle slang.
Who wants to be defined by their appearance & gender. Isn’t that the whole thing behind anti-discrimination laws, so that someone doesn’t classify & discriminate based upon gender, race and or religion ? Again, I maintain the discrimination at a criminal level is what needs to be legislated as hate crimes. Self identifying is only necessary for someone to feel comfortable about/’with themselves and move on in their life to accomplish bigger & better things in their lifetimes. Any animal on this planet doesn’t realize that mankind has called it whatever it is as a classification, they just seem to accept themselves for what they are and do animal things. In the decades of my lieftime, the human race has reinvented terminology for the same classifications. All because at a certain point someone was dissatisfied with the term or classification they called themselves or others established. What was acceptable decade to decade, somehow became offensive in a moment when someone got bored with the classification. Quite often it was nothing more than another deciding what someone could refer to them as. More of a power & control thing than being offended.
It got to the point on Government forms that a box was added, to “prefer not to self identify”. I have no problem with that, the truth comes out anyway at the interview or agency when anyone shows up, people have eyes, they get enough time to formulate their own opinion on anything. What I see “Don’t Say Gay” as, eliminate the need to elf identify. Honestly, nobody cares what another’s hobbies are, it really comes off as an awkward version of a Supreme Court nominee inquisition. Similarly, when someone asks a question if you like cars, that’s inoffensive for the most part. It only becomes offensive when someone asks Ford, Chevy, Japanese or European. And then all of a sudden it becomes a debate of my car is better than your’s competition. And so it goes with gender identity, male/female, hetero, homo. Bullying needs to stop, classification needs to stop, the hate needs to stop. Talking about Gay, or not, isn’t going to change that. So again, regulate the hate & crime. If a child needs an answer, let his parents answer those questions. The saddest part of this is that somehow, this need to be included becomes a reason of preference. With anyone, so you’re gay (or not), what skills do you have, what are you selling as a service or product that’s going to make anyone want to pay you more. Because once again, who you’re married to, date or whatever means nothing to me & shouldn’t to anyone else. If it does, legislate & regulate that hatred.
Kathryn says
Are you serious? “Bullying needs to stop”. You think telling gay people they can’t acknowledge being gay out loud is going to help that? You think that’s something that the children of gay parents “need” to live with? I’m glad you have the opportunity to turn a blind eye to hate, but Mr. DeSantis is filled with hate and cannot stop going after LGBT youth if it kills him. Don’t do this “stop labels” nonsense every time someone CHOOSES to use one. On that note, if this is your stance, never take pride in any label you give yourself again, regardless of what it’s on. Hating yourself is not a requirement of being gay–and, full circle, what you’re saying is essentially “don’t say gay”. The end.
Mark says
You are correct, bullying needs to stop. Especially bullying of parents who are concerned about their children’s education.
lamo says
Go woke, go broke… lolololol
maggie says
Ridiculous. Press all over this country continues to mis-represent this law. There is not a teacher in any public school system anywhere in this country who needs to be talking to KINDERGARTNERS about GENDER.
Man, in my sixty years, I’ve never seen such stupidity. Otherwise-sane people who want to die on this hill, continuing to screech “Gay! Gay!” as if that’s what it’s really all about, seem to be willfully obtuse to the point about what the bill actually says and the age group it actually protects.
I want someone–particularly the Walt Disney Corporation–to answer the specific question, “Why does anyone think a five- or six- or nine-year old CHILD needs to learn about these things outside the purview of their parents?”
WHY? Please be specific and fact- and reality-based. Thanks!
Florida Voter says
1) “There is not a teacher in any public school system anywhere in this country who needs to be talking to KINDERGARTNERS about GENDER.” … the words “he” and “she” are, by their very nature, gender defining terms.
2) “…willfully obtuse to the point about what the bill actually says…” laws aren’t defined by what their point is, they are defined by what is written. The law says that “Classroom instruction by school personnel or third parties on sexual orientation or gender identity may not occur in kindergarten through grade 3 …” but using gendered pronouns is teaching gender identity (cisgender male and cisgender female ARE genders). That is fact and reality.
There was recently a satirical letter that went around social media emphasizing that this bill also excludes teaching cisgender and heterosexual norms. This is the “Don’t Say Straight” law.
I’d include a link if Flagler Live lets me. If they want to respond with an official “Flagler Live Approved” link, maybe they can do that.
Florida Voter says
I don’t know if Flagler Live will let me post this link. If not, hopefully they can reply with one that they do approve of (or their own local copy of the letter). This letter shows what this “Don’t Say Straight” law is requiring.
https://www.comicsands.com/viral-memo-letting-florida-teachers-know-how-to-troll-don-t-say-gay-law-is-pure-fire-2657092882.html
Michael Cocchiola says
No matter how DeSantis defines this abhorrent attack on the LBGTQ+ community, the “Don’t Say Gay” law is clearly intended to show the radical Moms for Liberty that there will be no “grooming” in Florida schools. Its either intentional or subliminal effect will be to intimidate LGBTQ+ students into silence and invisibility. All this to appease those truly delusional QAnon voters.
Billie says
DeSantis is just returning sanity to our schools. How would you define a person who wants to talk to your kindergartener about sex? I would like to see them at the Green Roof Inn.
Kathryn says
Nobody wants to talk to Kindergarteners about sex and no teachers HAVE been talking to Kindergarteners about sex. If you’re still peddling the gay = sex and perversion myth, consider moving to this century. Letting a child with two dads talk about their family vacation should not be a Republican talking point. Unclutch your pearls a bit.
Mark says
Where did this incident take place? And where in the law is this brought up or addressed?
IMYellowstone says
“Much Ado About Nothing” is a Shakespearean work written in the 1500s! It deals with deception and infidelity among other interpersonal ambitions.
Now 700 years later, we have created issues that are ‘much to do about nothing.
We legislate them and make these issues worse. Unbelievable! Shame on us!
Hannah says
“At its heart, wokeness is divisive, exclusionary, and hateful. It basically gives mean people a shield to be mean and cruel.” Elon Musk.
Denali says
Ah yes, Elon Musk, the great philosopher of our time. He may be a business genius and a technological wonder-child; similar to Henry Ford in his day. But neither one of them has/had the wherewithal to be a decent person. Ford was a racist, bigoted anti-Semite and a homophobe, not sure that Musk is any better. Elon – stick to cars and rockets. Leave the social/political issues to the adults in the room.
Mark says
Let the bashing begin! Tucker was correct just as Trump has been correct soooo many times. One question. Do you know Musk personally?
Linda says
Wow, sounds like Elon was right. Totally woke.
Kathryn says
Elon Musk’s family has a history of blood diamond issues and the man himself cries on Twitter every time he gets called out for labor practices. Not really the person you should be idolizing, but I guess all of the Republican idols are stationed on Twitter (or were prior to bans) anyway.
Mark says
Talking about someone is idolization? It’s okay for liberals (democrats) to talk trash but its not for conservatives to call them on it? What happened to free speech and tolerance? Are these basic principles that democrats don’t agree with?