ORLANDO, FLORIDA – FEBRUARY 24: Florida Gov. Ron DeSantis speaks at the Conservative Political Action Conference (CPAC) at The Rosen Shingle Creek on February 24, 2022 in Orlando, Florida. (Photo by Joe Raedle/Getty Images)
In the first legal challenge to Republican governor Ron DeSantis‘ “Don’t Say Gay” bill, a group of Florida students, parents, and educators say that the newly-signed law is “an unlawful attempt to stigmatize, silence, and erase LGBTQ people in Florida’s public schools.”
The complaint was filed Thursday by the law firm of Kaplan, Hecker, and Fink, on behalf of a group of plaintiffs that include Florida students, parents, a teacher, and advocacy groups, led by the non-profit Equality Florida. DeSantis is named as a defendant, along with multiple Florida education officials.
The lawsuit alleges violations of Due Process and Equal Protection, as well as First Amendment free speech rights.
The filing comes just days after DeSantis signed House Bill 1557 into law. Referring to the law as the “Parental Rights in Education” bill, DeSantis praised the legislation as a way to “stand up for the rights of parents and the fundamental role they play in the education of their children.”
The law expressly prohibits “classroom discussion about sexual orientation or gender identity in certain grade levels or in a specified manner,” and says that “[c]lassroom 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.”
Those restrictions, the lawsuit says, along with the law’s enforcement mechanism that allows any parent to file a lawsuit over instruction they suspect violates the law, will have a drastic chilling effect on students, teachers, and parents.
The complaint raises numerous questions about how the law will affect discussions around LGBTQ+ issues in school and school-related functions.
To appreciate how this dynamic will unfold in practice, just consider how students, teachers, parents, guests, and school personnel might navigate these common questions: Can a student of two gay parents talk about their family during a class debate about civics? Can that student paint a family portrait in art class? Can a lesbian student refer to their own coming out experience while responding to a work of literature? Can a transgender student talk about their gender identity while studying civil rights in history class? What if that occurs in homeroom, or during an extracurricular activity with a faculty supervisor, or in an op-ed in the faculty supervised school newspaper? Are teachers allowed to respond if students discuss these aspects of their identities or family life in class? If so, what can they say? Do those same limits apply if a teacher intervenes where a student is being bullied or beaten (or mistreated at home) based on their sexual orientation or gender identity? What if students address aspects of LGBTQ identity in essays for which teachers must provide grades and feedback? Speaking of which, can a history teacher educate their students about the history of LGBTQ rights? Can a government teacher discuss Obergefell v. Hodges, 576 U.S. 644 (2015)? Can an English teacher make note of queer themes or plots—and can they assign books in which one of the characters (or their families, or a side character) is LGBTQ? Does the librarian have to remove every book with LGBTQ characters or references? More simply, can a gay or transgender teacher put a family photo on their desk? Can they refer to themselves and their spouse (and their own children) by the proper pronouns? What do they do if a student’s same-sex parents visit the class together on career day, or ask to join a field trip? Are those parents forbidden from speaking to the class, on the theory that their very presence somehow instructs students on “sexual orientation”?
“One might even ask: would it violate H.B. 1557 for a teacher to discuss with their students this very lawsuit and the public controversy surrounding H.B. 1557?” the complaint adds. “Under the plain language of the law, the answer might well be ‘yes.'”
“School Was Different”: Plaintiffs Fear Being Ostracized, Punished, or Shunned
Among the plaintiffs in the case is a lesbian couple, Rabbi Amy Morrison and Dr. Cecile Houry. They have two children; one is in the second grade at a Miami charter school, and the other will be starting kindergarten in that same school later this year. While the children are currently “comfortable and accepted at school”—the second-grade son, for example, has a family photo on the wall of his classroom, and has depicted his two mothers when asked to draw pictures of his family—the couple fears that will change under the new law.
“They fear that their children’s openness will not be embraced by their teachers or peers, and that their children will be stigmatized at school and otherwise,” the complaint says. “They also fear that their children will be made to feel that the differences in families are negative rather than positive, and that their children’s voices could be silenced.”
Morrison and Houry are also concerned that their ability to participate in the school’s community will be curtailed.
“They have always been open about their sexuality and their acceptance of others, but they worry that their lived value of acceptance will be seen as divisive and risky rather than uniting,” the complaint says. “They fear that others will not know what they can and cannot talk about and that, as a result, any attempts to be honest about who they are will be avoided or potentially silenced.”
Plaintiff Hatcher Powderly, a middle school teacher, “fears that the law will have a striking impact on what she is permitted to teach and discuss,” the complaint says. “For example, Hatcher Powderly often assigns independent reading to her students and lets them choose their own genre or authors. If she has a student who plans to read a book by an LGBTQ author or related to LGBTQ subject matter, she fears that she will be vulnerable to a lawsuit or school discipline. Similarly, Hatcher Powderly often gives her students the opportunity to write about individual experiences, and she fears that the bill might limit her ability to respond or engage with any student who writes about anything related to the LGTBQ community.”
Powderly also says that she “fears that almost anything she says could be turned against her,” because the law allows any parent to sue her over what she says in class. “She does not know how she will be able to teach without constant fear of losing her job, which would have irreparable consequences for her.”
Powderly is similarly concerned about the well-being of her students, especially her LGBTQ students, and that she may be “prohibited from supporting them without risking her job,” even if she is trying to “prevent bullying, protect their welfare, and answer appropriate questions.”
In fact, according to the complaint, teachers are already facing consequences for doing just that.
“Those that do engage [with LGBTQ students] have already faced consequences; for instance, one teacher who affirmed an LGBTQ student by informing the class that bullying about sexual orientation or gender identity is unacceptable is being harassed online by parents,” the complaint says.”
One student plaintiff is Zander Moricz, a gay high school senior at a magnet school. According to the complaint, he lived a “closeted adolescence” that was “deeply debilitating,” and felt like he never fit in or belonged at his school.
However, after coming out as gay during his freshman year, Moricz started to thrive: he has a top GPA, leads his local Model UN chapter, and has served as student body president for four years.
“At home, Moricz’s family was not at first accepting of his sexuality. It took many difficult conversations for him to feel safe and accepted,” the complaint says. “But school was different. Moricz has had warm and accepting teachers and friends who embraced him for who he is, and he has had many opportunities at school to express who he is and take pride in his identity.”
“The Right to Receive Information and Ideas.”
The complaint alleges that in addition to violating due process, equal protection, and free expression rights, the law also violates the constitutional “right to receive information.”
According to the 1982 Supreme Court decision in Board of Education v. Pico, the First Amendment protects students’ “right to receive information and ideas,” the complaint says. This right is violated when, for example, “officials exercise their discretion over curricular decisions ‘in a narrowly partisan or political manner.'”
The plaintiffs say that the law specifically violates their right to “receive and debate information and ideas concerning sexual orientation and gender identity, even when such information serves essential pedagogical purposes.” They allege that the law’s restrictions “are unrelated to legitimate pedagogical concerns, and serve no other legitimate state purpose. Instead, H.B. 1557 is rooted in animus against LGBTQ individuals, as demonstrated by the public record. H.B. 1557 is also the result of partisan or political decision-making.”
Lawyers for the plaintiffs say that the “Don’t Say Gay” law marks a significant rollback in hard-earned rights for LGBTQ people.
“With the passage of HB 1557, Florida has not only taken a giant step backwards, but it has done so at the expense of our children, the most vulnerable members of society,” attorney Roberta Kaplan said in a statement. “It is hard to imagine anything more offensive to our constitutional system than treating one group of school kids as second class based solely on who they are or who their parents are. This law cannot be allowed to stand.”
The coalition wants a federal judge to block the law and award them punitive damages.
DeSantis’ office did not immediately respond to Law&Crime’s request for comment.
You can read the complaint, via the law firm of Kaplan, Hecker, and Fink, below.
[Image via Joe Raedle/Getty Images.]
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