It is graduation day at Pine View School for the Gifted in Osprey, Florida. As the class of 2022’s valedictorian, Zander Moricz is tasked with preparing a speech to bid farewell to his classmates, reflect on his educational experiences, and inspire his peers for future success. Before the ceremony, Principal Stephen Covert calls Zander into his office to discuss his speech. He informs Zander that he can speak about whatever he likes, with one exception—he cannot say “gay.” If he does, his mic will be cut, and the entire ceremony will be stopped.
As an openly gay student, Zander was astonished that the school would not allow him to discuss such a crucial aspect of his life in his speech, which was supposed to reflect his personal experiences. He ultimately gave an emotional and articulate speech likening his curly hair to his sexual orientation, noting: “I used to hate my curls. I spent mornings and nights embarrassed of them, trying desperately to straighten this part of who I am, but the daily damage of trying to fix myself became too much to endure. While having curly hair in Florida is difficult—due to the humidity—I decided to be proud of who I was and started coming to school as my authentic self.”
Moricz is a plaintiff in a lawsuit filed against the state of Florida challenging the “Parental Rights in Education” act, notoriously known as the “Don’t Say Gay” bill (the “Bill”), which was passed a couple of months before his graduation. As a student activist for LGBTQ rights, he quickly became one of the Bill’s most prominent public opponents, immediately organizing a walkout at Pine View as well as a rally in Sarasota to protest the Bill’s dangerous implications for silencing and suppressing LGBTQ students’ identities in schools.
Passage of the “Don’t Say Gay” Bill
Florida Governor Ron DeSantis signed the Bill into law on March 28, 2022. In the preamble, it purports to “reinforce the fundamental right of parents to make decisions regarding the upbringing and control of their children” while “prohibiting classroom discussion about sexual orientation or gender identity in certain grade levels or in a specified manner.” The text of the Bill, however, does not explicitly prohibit classroom “discussion.” The Bill states: “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.” Parents are given a right of action to sue in the event they believe a school is violating the law.
Proponents of the Bill argue that it protects children from sexual indoctrination and allows parents greater involvement in their child’s education. Republican Senator Dennis Baxley, who filed the Bill in the Florida Senate, expressed that he did so because there is a cultural trend encouraging students to “come out” to gain attention for themselves. Governor DeSantis, on numerous occasions, has expressed the belief that the Bill would not simply empower parents, but also serve as an effective weapon to prevent discussions about non-conforming gender identities in schools. Governor DeSantis’s public remarks regarding the pervasiveness and seriousness of the alleged sexualization of academic materials for children, coupled with Senator Baxley’s stated reasoning for sponsoring the Bill, demonstrate that the Florida legislature intends to prevent students from learning about LGBTQ identities and issues in schools.
Opponents of the Bill
Public backlash to the Bill occurred instantaneously. Its opponents contend its vague language is ripe for vastly differing interpretations—Who is a third party? What is considered “instruction”? Can mere mention of a non-heterosexual relationship, for instance, warrant liability? Given the uncertainty of when liability is imposed under the Bill, opponents further argue that it unjustifiably provides parents a right of action to bring frivolous litigation against school districts that must bear the financial burden of any such lawsuits. Finally, opponents argue that because sex education already does not occur in kindergarten through grade 3 in Florida schools, the Bill is wholly unnecessary.
Ultimately, opponents view the Bill’s supposed purpose to “protect parents’ rights” as a thinly veiled attack by right-wing politicians on those who identify as LGBTQ. They further contend that no heterosexual or cisgender person should reasonably be concerned by this Bill; despite being facially neutral by addressing “sexual orientation” and “gender identity” in blanket terms, it is clear from the policymakers’ statements that heterosexual and cisgender identities are not the targets of suppression under the Bill—LGBTQ identities are. President Biden even went so far as to call the Bill “hateful” outright.
Opponents further argue that the Bill’s apparent facilitation of discrimination against LGBTQ individuals, a group already at an increased risk of dying by suicide because of stigmatization and marginalization, is especially worthy of condemnation. According to the Trevor Project’s 2022 National Survey on LGBTQ Youth Mental Health, 82% of all LGTBQ youth desire mental health care, but 45% of those who desire mental health care are unable to obtain it due to concerns with obtaining parental or caregiver permission. Moreover, LGBTQ youth identify their schools as LGBTQ- and gender-affirming spaces more often than their homes, further emphasizing the critical importance of allowing LGBTQ youth to seek mental health care in schools.
Will it Stand?
It ultimately remains to be seen whether the Bill will survive the fierce opposition it faces, both in public and legal discourse. Many constitutional scholars argue that because the Bill stifles free speech, it implicates a First Amendment issue. Others argue that the Bill should be declared void for vagueness under the Due Process Clause of the Fourteenth Amendment. Considering Title IX’s prohibition on sex-based discrimination in schools, a non-constitutional argument can be made that the law facilitates discrimination in violation of Title IX. As more Republican-led states follow Florida’s lead and pass similar bills, it is only a matter of time before the issue works its way up to our nation’s highest court.