The vague prohibitions in Florida's 'Don't Say Gay' law are 'guaranteed to be a lawsuit factory': columnist

The vague prohibitions in Florida's 'Don't Say Gay' law are 'guaranteed to be a lawsuit factory': columnist
Florida Governor Ron DeSantis (R) (U.S. Air National Guard photo by Master Sgt. William Buchanan).

Last month, Florida Republican Governor Ron DeSantis signed the Parental Rights in Education bill – colloquially nicknamed 'Don't Say Gay' – into law. The controversial legislation "prohibits classroom instruction on sexual orientation or gender identity in kindergarten through 3rd grade and prohibits instruction that is not age-appropriate for students and requires school districts to adopt procedures for notifying parents if there is a change in services from the school regarding a child’s mental, emotional or physical health or well-being."

The governor's allies claim that "Parental Rights in Education empowers Florida’s parents and safeguards our children." But from what, exactly? The law lacks concrete restrictions, relying instead on overinflated platitudes derived from old-school discrimination. It is scheduled to go into effect on July 1st barring a court injunction.

Thus, shortly after DeSantis' pen was put to paper, civil rights organizations and outraged parents filed a lawsuit challenging the law's constitutionality and accusing GOP lawmakers of an "attempt to stigmatize, silence, and erase LGBTQ people in Florida’s public schools."

The plaintiffs argue that the law is rooted in bigotry and that it is a transparent attempt to strip DeSantis' political opposition of their rights.

House Bill 1557 "piles one violation on top of another," the complaint reads. "It offends principles of free speech and equal protection by seeking to censor discussions of sexual orientation or gender identity that recognize and respect LGBTQ people and their families. It offends due process by using broad and vague terms to define its prohibitions—thus inviting discriminatory enforcement and magnifying its chilling effect on speech. And it arises from discriminatory purposes and outdated sex-based stereotypes that offend deeply rooted constitutional and statutory requirements."

The case also notes that "the potential for arbitrary and discriminatory enforcement here is self-evident—and it reflects a choice designed to maximize the law’s in terrorem effects. H.B. 1557 thus operates in a manner antithetical to reasonable requirements of an age or developmentally appropriate education, instead creating a scheme in which parents can use the threat of litigation over vague statutory terms to menace school boards and intimidate teachers into offering a skewed, discriminatory curriculum."

Those "broad and vague terms," as mentioned in the suit, "might be a feature, not a bug," columnist Greg Sargent wrote in an editoral published in Monday's Washington Post. "It could encourage conservative parents to sniff out violators around every classroom corner, contributing to the atmosphere of moral panic it appears designed to stoke."

But as Sargent proceeded to point out, the law's nebulous "statutory terms" and open-ended enforcement could lead to its undoing.

The intentional omission of specific terms (gay, straight, et cetera), Sargent posits, provides an avenue for parents to raise hell over just about anything that teachers say.

"Couldn’t parents object to a teacher letting a student talk about her gay parents or letting a transgender student discuss her experiences? Couldn’t parents object to a teacher’s handling of the bullying of such students?" he asks. "The tension here is that the law does not directly ban discussion of particular sexual orientations or gender identities. Drafters deliberately didn’t define its language, apparently to maintain superficial neutrality."

The engrained hypocrisy and blatantly prejudicial wording of HB 1557, the lawsuit maintains, means that “anyone who discusses or acknowledges any aspect of LGBTQ identity must fear running afoul of the law,” because the law has “taken for granted that discussing heterosexuality or cisgender identity in school settings is perfectly fine.”

Joshua Matz, the attorney for the complainants, told Sargent that HR 1557 is, therefore “guaranteed to be a lawsuit factory” which has already triggered “conflict and discord for years to come.” He added that “given the breadth and vagueness of the statute, parents across the state will inevitably file suit over a huge range of classroom activities."

The crux of the matter, according to Matz, is what the law's framers intended without having explicitly codified.

“If a teacher can’t assign a story about a young girl who comes home after school to her two mommies, that teacher also can’t assign a book about a young girl who comes home to her mommy and daddy," Matz said, because both “equally instruct” on “sexual orientation.”

Matz predicted that "it will be extremely revealing to see which forms of classroom instruction its sponsors actually believe have been prohibited" once hearings – and what will surely be a fascinating discovery process – begin. HR 1557, notably, is not based on scientific data or research, and its uniquely malicious nature makes it ripe for an unending series of courtroom quarrels, the outcomes of which will profoundly impact students.

"The vagueness of the law is the point. It appears designed to stoke teacher fears of transgressing lines that aren’t at all clear, and to encourage conservative parents to zealously hunt for those transgressions wherever possible," Sargent concludes. "Nobody wants to see such a huge legal crap-fest unfold. But if it does, DeSantis and the law’s drafters are the ones to blame."

Sargent's full opinion column can be viewed here (subscription required).

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