A protest against Florida’s “Don’t Say Gayor Trans” law in 2022. (Photo courtesy of Jack Petocz)
A settlement reached with the Florida State Board of Education, Florida Department of Education and various school districts and the attorneys and plaintiffs clarifies what is allowed in Florida classrooms under the state’s controversial “Parental Rights in Education” law colloquially referred to as the “Don’t Say Gay or Trans” law.
The plaintiffs’ lawyers at Kaplan Hecker & Fink LLP and the National Center for Lesbian Rights filed the agreement with the 11th U.S. Court of Appeals March 11. The agreement effectively nullifies the most dangerous and discriminatory impacts of the law, and makes clear that the law must be applied neutrally and is no license to discriminate against or erase LGBTQ+ families.
Cameron Driggers and Jack Petocz, who led the statewide student protest against the “Don’t Say Gay or Trans” law in March 2022, reacted in a text message to the Washington Blade saying:
“LGBTQ+ students and allies are breathing a sigh of relief today in response to the news that litigation has successfully mediated some of the most extreme aspects of Gov. DeSantis’ ‘Don’t Say Gay’ legislation. Just about two years ago, we led a statewide school walkout all across the state of Florida in response to that bill. We knew then that it infringed on the basic civil liberties of students and teachers and we look forward to future challenges to other pieces of authoritarian legislation,” they wrote.
The statement continues, “The settlement restores the ability of students, teachers and others in Florida schools to speak and write freely about sexual orientation and gender identity in class participation and schoolwork,” the legal teams noted in a statement. “It also restores safeguards against bullying on the basis of sexual orientation and gender identity, and reinstates Gay-Straight Alliances (GSAs). Critically, the settlement also requires the State Board of Education to send today’s agreement to every school district, and to make clear that the settlement reflects the considered position of the state of Florida on the scope and meaning of this law.”
Specifically, the historic settlement agreement clarifies the following:
-Classroom references. The law does not prohibit references to LGBTQ+ persons, couples, families or issues, including in literature, in classroom discussion (such as student-to-student speech or teachers responding to students’ questions), in students’ academic work product or teachers’ review of the same, in teachers identifying same-sex or transgender spouses or partners or in any other context in which a teacher is not “instructing” on the subject of sexual orientation or gender identity.
-Nondiscrimination. The law does not target LGBTQ+ persons, couples, families or issues. Rather, it requires neutrality and prohibits “classroom instruction” on the subjects of sexual orientation or gender identity, whether the subject addresses heterosexuality, homosexuality, bisexuality, cisgender identities, transgender identities or otherwise. It would violate the law, then, to instruct that heterosexuality is superior to other sexualities, or that cisgender identities are superior to transgender identities.
-Anti-bullying and acceptance. The law does not prohibit instruction or intervention against bullying on the basis of sexual orientation or gender identity, nor does it require the removal of safe space stickers or elimination of safe space areas for the benefit of LGBTQ+ persons.
-Extracurricular activities. The law does not prohibit Gay-Straight Alliances, including student attendance or participation by teachers or other faculty members. The law also does not prohibit book fairs that include LGBTQ+ focused books, musicals or plays with LGBTQ+ references or characters, participation and expression by LGBTQ+ persons in other extracurricular events like school dances or the wearing of clothing that is affiliated with LGBTQ+ persons or issues or that does not conform with one’s perceived gender identity.
-Library books. The law does not apply to library books, so long as those books are not being used in the classroom to instruct on the subjects of sexual orientation or gender identity.
-Third parties. The law does not apply to non-school-personnel, including parents, other family members and guest lecturers, so long as the school is not delegating to such third party the role of providing classroom instruction on the subjects of sexual orientation or gender identity.
“We made a promise to LGBTQ+ families, students and educators across the state to ensure that they received equal dignity under the law, and to protect our schools from a censorship agenda that harms the education system as a whole,” said Equality Florida Executive Director Nadine Smith. “Florida has already endured nearly two years of book banning, educators leaving the profession and safe space stickers being ripped off of classroom windows in the wake of this law cynically targeting the LGBTQ+ community. This settlement is a giant step toward repairing the immense damage these laws and the dangerous political rhetoric has inflicted on our families, our schools and our state. The message to school districts, superintendents and teachers alike is clear: Protect every student and respect every family.”
In early 2022, Republican Gov. Ron DeSantis signed House Bill 1557, commonly known as the “Don’t Say Gay or Trans” bill. The plaintiffs sued the next day, alleging that the law was impermissibly vague, was obviously motivated by hostility to LGBTQ+ people and families and created an enforcement system that enabled discrimination and discouraged efforts to fight it. The plaintiffs claimed that the law violated their rights to equal protection, due process and free speech. The plaintiffs litigated aggressively, and engaged in months of negotiations with the state’s lawyers to forge Monday’s historic settlement.
“This settlement is a huge victory for our community, both in Florida and nationally. It not only reverses the censorship and intimidation created by Florida’s ‘Don’t Say Gay or Trans’ law, it codifies important new protections that were not previously clearly established, such as the right of teachers and staff to talk about LGBTQ people, to put safe space stickers in their classrooms, and to be open about their own LGBTQ identities or same-sex partners, just as straight teachers are able to be,” said NCLR Legal Director Shannon Minter in a phone statement to the Blade. “I am thrilled to be part of this historic moment, which is a strong sign that the tide of anti-LGBTQ hatred and persecution is turning, thanks to the hard work of so many.”
Human Rights Campaign National Press Secretary Brandon Wolf issued a statement, saying “This is more evidence: The tide is turning on the anti-LGBTQ+ agenda. In state legislatures and courtrooms in Florida and beyond, discriminatory policies are starting to collapse. The DeSantis administration was forced to acknowledge that their vague, broad law was having sweeping consequences. And this settlement makes clear that every student deserves a safe, welcoming school environment where their families are treated with the respect that they deserve — and that what applies to LGBTQ+ people must apply to others equally. Thank you to the legal team and courageous plaintiffs for challenging this discriminatory law.”
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