The Simultaneous Destruction of First Amendment and LGBTQ+ Rights in America
The American dream is nonexistent for an abundance of individuals within the LGBTQ+ community whose rights have been rapidly curtailed. March 28, 2022 marked the beginning of a particularly discriminatory period as a result of Ron Desantis’ signing of the “Parental Rights in Education” Law, now more widely known as the “Don’t Say Gay” law. [1] This law is one among more than a dozen others, including the “Stop the Sexualization of Children Act,” which prohibit federally-funded schools from teaching material related to sexuality. Together, these bills intend to outlaw discussion of sexuality and gender identity in elementary school classrooms and thereby infringe upon the rights of teachers. The passing of “Don’t Say Gay” has evoked an abundance of social controversy and multiple lawsuits that accuse the law’s wording of being incredibly vague which could lead to dangerously broad applications. Ultimately, the aforementioned bills and laws violate the First Amendment by widely censoring teachers and are therefore unconstitutional.
For children in kindergarten through grade three, the “Parental Rights in Education” Law prohibits “instruction on sexual orientation or gender identity or instruction in a manner that is not age-appropriate or developmentally appropriate for students.” [2] The law harps on parents’ fundamental right to determine the “care and upbringing of their children,” [3] and thus requires that school personnel be barred from communicating assertions that “kindergarten-aged kids could be whatever they want to be.” [4] These messages, the governor stated, are not “appropriate for any place, but especially not in Florida.” [5]
Following the passage of this law, multiple families and advocacy groups filed suits regarding the law’s inherent vagueness and broad scope. [6] The first complaints were filed by the National Center for Lesbian Rights with the support of Kaplan, Hecker, and Fink LLP and Equality Florida on March 31, 2022, just three days after Desantis signed “Parental Rights in Education” into law. The plaintiffs argued that the law infringed upon teachers’ First Amendment Rights by claiming that the law would censor classroom discussions of sexual orientation and gender identity. They further claimed that the law’s “broad and vague terms' ' were an explicit attempt to invite inequitable enforcement as each teacher will have a subjective opinion regarding the lawfulness of particular speech. Moreover, the unclear nature of the statutory phrases precisely enable the law to achieve discriminatory goals. [7] Being that no one can be sure what the imprecise language encompasses, the safest choice seems to be to avoid LGBTQ+ conversations in their entirety. Plaintiffs of the case of Equality Florida, Family Equality, et. al v. Desantis specifically referenced the “right to receive information” guaranteed under the First Amendment. They argue that because teachings on sexual orientation and gender identity have a pedagogical purpose, students have a right to be taught this information. [8] This case ushered in an additional lawsuit which was later rejected. [9]
The law’s attack on teachers’ freedom of speech begins in the preamble which directs district school boards to adopt procedures that “prohibit classroom discussion about sexual orientation or gender identity in certain grade levels or in a specified manner.” [10] The word “discussion” in this preamble extends beyond “instruction” to encompass a much broader categorization of discourse. A definitive statement as to what qualifies as “instruction” or “discussion” is not provided in the law’s text, which leaves much up to interpretation. This statutory ambiguity is a crucial and decisive void. If school board members, teachers, and administrative staff all differ in their interpretation of these definitions, there could be a great deal of conflict. Without explicitly stated boundaries, it is difficult to know what is classified as a discussion or mere mention, and thus the act becomes difficult to enforce.
In 1962, a similar issue was brought to the attention of the Supreme Court following the merging of the University of Buffalo into the State University of New York System. Due to this structural shift, all once-privately employed individuals became state employees and were thus subject to state regulations that prohibited the employment of “subversive persons.” In the case of Keyishian v. Board of Regents of University of State of New York (1967), plaintiff Harry Keyishian was asked to sign a statement asserting that he was not a Communist and had never been one. He refused and was consequently subject to release or non-renewal of contract, leading him to sue for declaratory and injunctive relief and to publicly assert the unconstitutionality of the provision. The Supreme Court ultimately ruled in favor of Keyishian, stating that the provisions created by the state university system were so ambiguous that they infringed upon the First Amendment rights of public servants. [11] Under the New York Education Law, “treasonable or seditious utterances or acts'' were valid reasons for dismissal and yet, what would be considered “treasonable or seditious” was never defined. [12] Further, the New York Civil Service Law required employees of the educational system to be released if found “advocating [for] or involved with the distribution of written material which advocates the forceful overthrow of the government,” which was worded so vaguely that it could have extended so far as to forbid the teaching of documents such as the Declaration of Independence. [13] The Court explained that the country has an interest in making the education system “as free and open as possible,” and that the vague requirements of this plan were detrimental to this intended environment. [14] Furthermore, the Court declared that because academic freedom is particularly important under the First Amendment, a “pall of orthodoxy” pitched over the classroom would not be tolerated. [15] This Supreme Court decision set a precedent that is highly applicable to the case at hand, as it demonstrated that equivocal language left too much room for unconstitutional and prejudiced interpretations and enforcements.
Other court cases in American legal history provide precedent that distinguishes between forms of speech that are controversial and those that materially interfere with school operations.
In 1969, when a group of students coordinated wearing black armbands in support of ending the Vietnam War, the principals of a Des Moines school subsequently created a policy to permit the suspension of any student who refused to remove their armband. In the case Tinker v. Des Moines Independent Community School District (1969), the students sued for violation of the First Amendment, and the Supreme Court ruled in favor of them. In the majority opinion, the Court held that suppression of First Amendment rights in schools could only be justified if school officials were able to assert that the actions taken would “materially and substantially interfere” with school affairs; unsubstantiated fears without material interference were not enough to justify the suppression of students’ freedom of speech. [16] The ambiguous language used in the ruling leads one to question whether actions such as a child discussing their two gay parents in an elementary history course would be deemed to “substantially interfere with school operations.” While the aforementioned black armbands were a public, political act of protest, mentions of sexuality are far more private and personal. Thus, some individuals may deem these conversations as provocations of interference to classroom instruction because of their intimate nature. But, there is nothing that makes a conversation regarding sexuality or gender more personal than, say, a conversation with a student regarding parental divorce or death in the family. Law that restricts these conversations sets precedent for the possibility of restrictions on every personal matter. As previously stated, fear is not reason enough to prohibit speech – just because a conversation is difficult does not mean it is unlawful. Based on the precedent set in Tinker, it seems unlikely that any minor mention of sexuality could be justified as truly obstructing the duty of the school system.
Ultimately because the “Parental Rights in Education” Law directly censors public school teachers, it is also apt to consider the precedent set by Pickering v. Board of Education concerning Marvin Pickering, a teacher who wrote a letter to the Lockport Herald in which he dissented the school board’s handling of funds. He stated in the letter that the Board of Education had failed to inform taxpayers as to why additional tax revenues were being collected for Will County schools. Thereafter, Pickering’s employment was terminated. The defendant, the Board of Education, asserted that several of Pickering’s statements were false and unnecessarily impugned the school board. The Supreme Court ruled in favor of Pickering, proclaiming that firing him violated his First Amendment right to free speech and that it would only be indefensible if the speech contained “false” or “reckless” statements. [17] While the Court did not establish specific principles to measure teachers’ speech, general guidelines were outlined relating to the safeguarding of confidentiality, co-worker relations, superior-subordinate relationships, and classroom organization. [18] Thus, this case set a precedent that teachers have the right to speak on matters important to them, as long as this material does not disrupt the educational processes of the school district, undermine authority figures, or harm professional relationships. [19] Because the discussion of sexual orientation and gender identity do not fit any of the aforementioned criteria for suppression of teachers’ speech, the “Parental Rights in Education” Law is unsupported by the judicial history. By undermining the precedent set by Pickering, proponents essentially assert that conversations regarding sexuality are falsified, reckless, or harmful, thus parroting modern gender normative stereotypes, gender denial, and homophobia.
Despite the legal precedent set by these cases, Equality Florida, et al. v. Florida State Board of Education was dismissed based on a lack of legal standing regarding harms inflicted on students. [20] The language of the plaintiffs’ claims did include statements that the harm of the law was “already manifest” prior to it going into force, thus the law’s enforcement itself could not be deemed the problem. [21] Nonetheless, it is likely more claims will be brought against the law as it begins being enforced and invades rights to an even greater extent. Indeed, on April 20, 2023, Florida’s Board of Education approved an expansion of the law: while it once prohibited instruction of the aforementioned topics through third grade, it will now additionally apply to students through grade four-eleven. [22] This is sure to usher in further controversy in regards to the First Amendment rights of teachers and students as children from ages nine to seventeen have more autonomy and are thus more likely to speak out than, say, a child of age five.
The “Don’t Say Gay” law is just the beginning of a rapidly approaching collapse of LGBTQ+ rights and simultaneous limiting of free speech in general. Without pushback, LGBTQ+ rights will not be the only ones to go. In 2022, Florida also enacted the Individual Freedom Act, commonly referred to as the “Stop W.O.K.E. Act,” to restrict discussion of race, color, national origin, or sex in K-12 schools and universities. [23] Furthermore, reproductions of the “Don’t Say Gay” law have been introduced in 23 other state legislatures. [24] Congressional Republicans have also introduced the “Stop the Sexualization of Children Act,” a national version of the Don’t Say Gay bill. [25] The dismantling of free speech rights has begun and will unfortunately begin by affecting some of America’s most marginalized groups. In a time of darkness for many individuals, the silver lining exists in the advocacy groups that work with fervor to ensure constitutional rights are protected for all individuals.
Edited by Iris Chen
[1] Jaclyn Diaz, “Florida’s Governor Signs Controversial Law Opponents Dubbed ‘Don’t Say Gay’”, , March 28, 2022, https://www.npr.org/2022/03/28/1089221657/dont-say-gay-florida-desantis.
[2] Parental Rights in Education, CS/CS/HB 1557. (2022). https://www.flsenate.gov/Session/Bill/2022/1557/Analyses/h1557b.JDC.PDF.
[3] Parental Rights in Education, CS/CS/HB 1557. (2022).
[4] Diaz, “Florida’s Governor.”
[5] Diaz, “Florida’s Governor.”
[6] Jo Yurcaba, “Florida Families and Advocacy Groups File Lawsuit Over ‘Don’t Say Gay’ Law,” NBC, July 26, 2022, https://www.nbcnews.com/nbc-out/out-politics-and-policy/florida-families-advocacy-groups-file-lawsuit-dont-say-gay-law-rcna40053.
[7] Equality Florida, Family Equality v. Ronald D. Desantis, No. 4:22-cv-00134 (Dist. Ct. N.D. Fla. Mar. 31, 2022).
[8] Equality Florida, Family Equality, et al. v Ronald D. Desantis https://www.nclrights.org/wp-content/uploads/2022/03/Equality-Florida-et-al.-v.-DeSantis-et-al.-Complaint.pdf.
[9] Jim Saunders, “Another Challenge to Florida’s ‘Don’t Say Gay’ Law Has Been Thrown Out,” WFSU, February 16, 2023, https://news.wfsu.org/state-news/2023-02-16/another-challenge-to-floridas-dont-say-gay-law-has-been-thrown-out
[10] HB 1557 https://www.flsenate.gov/Session/Bill/2022/1557/Analyses/h1557b.JDC.PDF
[11] Keyishian v. Board of Regents of Univ. of State of N. Y., 385 U.S. 589, 385 (1967).
[12] Keyishian v. Board of Regents of Univ. of State of N. Y.
[13] Keyishian v. Board of Regents of Univ. of State of N. Y.; Ian Millhiser, “The Constitutional Problem with Florida’s ‘Don’t Say Gay’ Bill,” Vox, March 15, 2022, https://www.vox.com/2022/3/15/22976868/dont-say-gay-florida-unconstitutional-ron-desantis-supreme-court-first-amendment-schools-parents
[14] Keyishian v. Board of Regents of Univ. of State of N. Y., 385 U.S. 589 (1967).
[15] Keyishian v. Board of Regents of Univ. of State of N. Y.
[16] Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969).
[17] Pickering v. Board of Education, 391 U.S. 563 (1968).
[18] Karen Lavine, “Free Speech Rights of Homosexual Teachers,” Columbia Law Review 80, no. 7 (Nov. 1980): 1518.
[19] FindLaw Writers, “Teachers’ Rights: Overview,” FindLaw, June 20, 2016, https://www.findlaw.com/education/teachers-rights/teachers-different-freedoms-and-rights.html
[20] Equality Florida, et al., v. Florida State Board of Education, et al., No. 4:22-cv-134-AW-MJF (11th Cir. 2022).” https://eqfl.org/sites/default/files/MTD%20Decision.pdf?_ga=2.127550478.244167800.1681782059-2055373358.1681782059
[21] Equality Florida, et al., v. Florida State Board of Education, et al.
[22] Nathaniel Frank, “What the Science Says About ‘Don’t Say Gay’ and Young People,” New York Times, April 20, 2023, https://www.nytimes.com/2023/04/20/opinion/dont-say-gay-bill-florida.html
[23] Release by Staff, “Governor DeSantis Announces Legislative Proposal to Stop W.O.K.E. Activism and Critical Race Theory in Schools and Corporations,” Flgov, December 15, 2022, https://www.flgov.com/2021/12/15/governor-desantis-announces-legislative-proposal-to-stop-w-o-k-e-activism-and-critical-race-theory-in-schools-and-corporations/
[24] Eesha Pendharkar, “Which States Are Considering ‘Don’t Say Gay’ Bills and Where They Stand,” EducationWeek, February 28, 2023,
https://www.edweek.org/policy-politics/which-states-are-considering-dont-say-gay-bills-and-where-they-stand/2023/02
[25] U.S. Congress. House. Stop the Sexualization of Children Act. HR 9197. 117th Congress. Introduced in the House October 18, 2022. https://www.congress.gov/bill/117th-congress/house-bill/9197.