First Amendment Rights and Florida’s “Don’t Say Gay” Bill

Jason Orringer

Associate Editor

Loyola University Chicago School of Law, JD 2023

Florida’s “Don’t Say Gay” bill, which would bar Florida educators from speaking to students about LBGTQ+ topics that are not considered “age-appropriate or developmentally appropriate for students” has passed in Florida’s House and is likely to pass in the Senate as it now moves to the Republican-controlled Senate floor for a vote. The horrific piece of legislation, formally known as HB 1557, has raised questions as to whether the bill, if passed, would violate the First Amendment rights of teachers or students in public primary schools across the sunshine state.

HB 1557’s restraints on teachers and students

The issue that HB 1557 would potentially present is twofold. First, while teachers are already limited in a public classroom to delivering the curriculum that they are assigned to teach, this bill would restrict a teacher’s ability to chime in during conversation brought up by students openly discussing anything regarding sexual orientation or sexual identity. Second, not only would teachers be unable to moderate a productive conversation, but they also would potentially have to shut down the conversation in its entirety. This subsequently leads to the distinct possibility that by following the bar presented in HB 1557, the teacher would be infringing on the student’s freedom of speech.

The First Amendment in schools

The Supreme Court has repeatedly made it clear that students at all age levels possess First Amendment rights in the classroom. The 1969 ruling in the case of Tinker v. Des Moines Independent Community School held that schools could not shut down student free speech unless it materially and substantially interfered with the operation of the school. This amendment protects the rights of LGBTQ+ people to speak and express themselves openly in ways consistent with their identities.

Harming the LGBTQ+ community

The restraints this bill would place on LGBTQ+ individuals or students coming from LGBTQ+ families would be incredibly counterproductive. For a student who has two moms or two dads, not being able to have their family dynamic be openly discussed in a classroom, let alone be acknowledged as being equal, can negatively impact the student’s mental health.

Erasing LGBTQ+ identity, history, and culture in the classroom is also erasing students who are LGBTQ+ themselves. Research from The Trevor Project, an American nonprofit organization focused on suicide prevention amongst LGBTQ+ individuals, have found that LGBTQ+ youth who have actually learned about LGBTQ+ issues or people in class at school had twenty-three percent lower odds of reporting a suicide attempt in the past year. HB 1557 would not only silence many but could also force others back into the closet and lead to a significant increase in suicide attempts.

Furthermore, the bill would require that schools notify parents “if there is a change in the student’s services or monitoring related to the student’s mental, emotional, or physical health or well-being and the school’s ability to provide a safe and supportive learning environment for the student.” It also would require school district personnel to “encourage a student to discuss issues relating to his or her well-being with his or her parent or to facilitate discussion of the issue with the parent.” This language has the practical effect of encouraging schools to “out” their students to their parents, unless they believe that it could result in abuse, abandonment, or neglect. Leaving it to the school’s discretion as to whether or not a student’s sexuality or gender identity should be told to their parents can be incredibly dangerous for the student’s stability and mental well-being

Fighting back

Unfortunately, HB 1557 has passed in the Florida Senate and will likely be signed into law by Governor DeSantis in the coming weeks. However, students across the state of Florida have already been standing up to the bill via mass school walkouts. Jack Petocz, an openly gay high school senior at Flagler Palm Coast High School in Florida, was suspended indefinitely for handing out pride flags for the peaceful walkout that more than 200 students from the school participated in. Additionally, the White House has spoken out in opposition to this bill as President Biden reiterated during his recent State of the Union address that he is in strong opposition to hateful bills like HB 1557 springing up across the nation and is pushing for the Equality Act to finally pass to provide more formal protections for LGBTQ+ identifying Americans. If the bill is indeed signed into law, it will likely be challenged on First Amendment grounds.