Settlement: Florida Students, Teachers Can Say Gay; Schools Can’t Discriminate

LGBTQ advocates, Gov. Ron DeSantis both claim victory in a court agreement limiting the scope of a much-mimicked 2022 law.

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Attorneys representing a group of Florida students, parents and teachers have settled a lawsuit challenging the state’s prohibition on classroom instruction involving LGBTQ people and topics. While lessons specifically about sexual orientation and gender identity are still banned, the agreement will allow in-school classroom discussions of such topics, require schools to prohibit discrimination and bullying based on sexual orientation and gender identity, and make it clear that the so-called “Don’t Say Gay” law does not extend to the banning of books.

Further, the agreement stipulates that instruction must be neutral on LGBTQ matters, meaning, for example, that lessons cannot depict heterosexuality as preferable. 

“The state of Florida has now made it clear that LGBTQ+ kids, parents and teachers in Florida can, in fact, say that they are gay,” the lead plaintiffs’ attorney, Roberta Kaplan, said in a statement.

In addition to representing the Florida plaintiffs, Kaplan represented Edie Windsor, whose case resulted in the U.S. Supreme Court’s landmark decision overturning the Defense of Marriage Act. More recently, she handled E. Jean Carroll’s defamation lawsuit against former President Donald Trump.

Florida Gov. Ron DeSantis also declared the settlement a “major win,” noting that his Parental Rights in Education Act remains in effect. The law originally prohibited LGBTQ-related instruction in kindergarten through third grade. Last year, it was amended to outlaw most lessons in all grades. 

Because the law and related state regulations were broad and vague, school administrators have removed pride flags and stickers from classrooms, made teachers empty bookshelves and done little to quell LGBTQ parents’ fears that their children may be punished for talking about their families. 

“If you read the early drafts of the Florida bill, it really seems as if any discussion at all was prohibited,” says Katie Blankenship, director of the state’s chapter of the free speech advocacy group PEN America. “Teachers were told never to discuss it in school if their families had same-sex partners. Go back in the closet, stay in the closet or find another place to work.”

Florida’s Board of Education issued a rule saying teachers could lose their licenses if they violated restrictions on instruction — even though the law did not include such sanctions — or if their classrooms contained books with LGBTQ characters or themes. 

In January 2023, the Williams Institute, an LGBTQ data clearinghouse located at UCLA, published survey results showing that almost 9 in 10 queer parents feared the law’s impact on their families, with more than half considering leaving the state and a fourth reporting they had been harassed since its passage.

Under this week’s agreement, education officials must send every school board in the state a copy of the settlement, which outlines numerous ways in which in-school discussion of LGBTQ topics is allowed, as well as officials’ legal obligations to protect students and educators from harassment and discrimination. 

The document defines classroom instruction as “the formal work of teaching” and lists “teaching an overview of modern gender theory or a particular view of marriage equality” as an example of something prohibited. Not banned is “mere discussion” of gay or transgender people or same-sex couples in class, or a student’s decision to address sexual orientation or gender identity.

“The statute would also leave teachers free to ‘respond if students discuss … their identities or family life,’ ‘provide grades and feedback’ if a student chooses ‘LGBTQ identity’ as an essay topic and answer ‘questions about their families,’ ” the agreement states. It adds that “just as no one would suggest that references to numbers in a history book constitute ‘instruction on mathematics,’ ” a literary reference to LGBTQ people in a book does not violate the law “any more than a math problem asking students to add bushels of apples is ‘instruction on apple farming.’ ” 

Blankenship says she expects compliance will be uneven for some time. 

“I anticipate different levels of eagerness to apply this settlement, depending on the demographics of each community,” she says. School leaders in “some places will be delighted, while in some places it will be a struggle.”

The settlement does not apply to what PEN calls “educational gag orders” in other states, nor will it necessarily have an impact on increasing levels of teacher self-censorship that researchers have found even in states where no law or rule limits what can be taught. 

Following the Florida law’s 2022 passage, legislators in numerous states introduced bills restricting classroom speech. At least 15 states enacted versions of the law, and hundreds of anti-LGBTQ bills are under consideration in statehouses in the current legislative season. 

While the letter of each law may differ, gay and transgender advocacy groups say the overall impact nationwide has been a marked increase in in-school anti-LGBTQ violence and harassment, fear and confusion leading to teacher self-censorship and the end of supportive programs such as gay-straight alliances.

The U.S. Department of Education has launched an investigation into the death of nonbinary Oklahoma teen Nex Benedict after a fight in a high school girls’ bathroom Feb. 7. An LGBTQ educator in that district had been singled out for criticism by state officials for his support of queer youth.

A 2022 Oklahoma law forced Nex to use the girls’ bathroom, a space considered unsafe for transgender youth. A coroner has ruled the teen’s Feb. 8 death a suicide.

Data from the school climate advocacy groups GLSEN and The Trevor Project reveals rising rates of anti-LGBTQ speech and actions not just in states where the new laws are in effect, but in classrooms in places previously known for supporting gay and trans students. 
Referring to the settlement as “very drinkable lemonade,” Blankenship says it’s a start: “The bubble of fear has now been popped.”

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