A few weeks ago, I got an unexpected Facebook notification. My high school had newly formed an alumni association, and they were reaching out to me to gauge my interest in speaking at my high school about my life and career.
I was excited – my high school was a Title I school and most of us who attended were low-income and disadvantaged. Despite that, the school had an International Baccalaureate program for some students to earn early college credits. That program’s rigor made me a competitive candidate for prestigious universities, making it possible for a low-income student like me to get full financial aid at an Ivy League university.
I hoped that I could speak to students and show them what paths might be open to them. I wanted to speak to the students who didn’t fit in, the ones with thrift store clothes and an excess of ambition. I wanted them to know how I went from a loudmouthed lesbian oddball to a financial aid student at an Ivy League college to pursuing a law degree at Harvard Law School. I don’t mean to sound like a 2012 “It Gets Better” video, but it’s true – I went from a lonely high school student hellbent on fleeing the South to a fledgling lawyer engaged to the love of my life and doing the work I love. I plan to spend my career fighting to protect the rights of LGBTQ+ children, a career path I had no idea existed when I was a high school student.
I stared at the registration form. I realized I could not check the box indicating my interest in speaking. Instead, I added a note: “I am interested in speaking about my academic and career path, but it is likely that I legally cannot do so due to the state’s ‘Don’t Say Gay or Trans’ law.”
Florida’s “Don’t Say Gay or Trans” law – also known as the Parental Rights in Education Act or HB 1557 – is exceedingly and unconstitutionally vague. Legal challenges filed by NCLR, the ACLU, Lambda Legal, HRC, Equality Florida, and other LGBTQ+ organizations stress how the law is written to be purposefully confusing and unclear. If a school doesn’t know if it will be sued or not, why take the risk?
The uncertainty is the point.
If someone knows they may be sued for their speech, they will often not speak at all. In Grayned v. City of Rockford, the Supreme Court held that a law must be “void for vagueness if its prohibitions are not clearly defined.”
The most dangerous piece of “Don’t Say Gay or Trans” is how it may be enforced – if a parent believes the law’s vague standard has been violated, they can trigger a state investigation of the school and even sue a school for monetary damages. Schools are forced to balance their obligations to LGBTQ students with the knowledge that nearly anything could trigger a protracted and expensive legal fight.
In March 2022, NCLR, along with Kaplan Hecker & Fink LLP, filed a lawsuit challenging the enforcement of the “Don’t Say Gay or Trans” law in FL.
In M.A., et al. v. Florida State Board of Education et al., we argue that “Don’t Say Gay or Trans” violates the Equal Protection Clause of the Constitution, as well as Title IX of the Education Amendments of 1972, which prohibits discrimination based on sex in education programs and activities that receive federal financial assistance. Bringing together stories from LGBTQ young people, parents, and supportive organizations, the lawsuit explains exactly what LGBTQ youth stand to lose if they are no longer allowed to be open about their views and identities in schools.
Despite the power of these stories, the district court found that the harms the plaintiffs described were hypothetical and not yet realized. The Northern District of Florida dismissed the lawsuit last year.
We believe that the Court misunderstood the harm of such a law: “Don’t Say Gay or Trans,” whether it is enforced or not, creates an environment where students and school employees stay silent on LGBTQ+ issues. Silence on LGBTQ+ issues is inherently harmful – if students feel unable to speak up about their experiences, serious problems like homophobic and transphobic bullying can, and will, continue freely. NCLR is currently pursuing an appeal in the 11th Circuit.
It may be that under the exact text of HB 1557, I am able to speak at my high school. The text of another bill, HB 1069 – expanding the “Don’t Say Gay or Trans” law – bans all “classroom instruction” on sexual orientation and gender identity through grade 8 and requires the lesson to be “age-appropriate” for grades 9-12. The law applies to teachers and “third parties” providing this instruction.
The Florida Department of Education’s rule (6A-10.081) is even stricter: Florida educators “[s]hall not intentionally provide classroom instruction to students in grades 4 through 12 on sexual orientation or gender identity unless such instruction is either expressly required by state academic standards…or is part of a reproductive health course or health lesson for which a student’s parent has the option to have his or her student not attend.” Does bringing in a speaker count as “classroom instruction” under this law?
Maybe I could speak under these rules. Maybe if I spoke after school, if attendance was not mandatory, and if parents signed a waiver. Maybe if I censored myself and spoke only about law school in general terms, without mentioning my fiancée (a woman) or where I work now (the National Center for Lesbian Rights) or what my long-term goals are (to advocate for LGBTQ+ youth). But I am not willing to censor myself, and I am not willing to potentially put the school in legal jeopardy by opening it up to litigation from angry parents.
It would have meant the world to me to meet an LGBTQ adult when I was isolated and confused in high school. I graduated in 2015, a few weeks before Obergefell v. Hodges made same-sex marriage legal across the country. When I left the South, I took comfort in the fact that LGBTQ acceptance was becoming a reality for younger queer people.
S.S., one of the anonymous student plaintiffs in M.A. v. Florida Board of Education, is a high school student in Florida. Like me, she is an International Baccalaureate student. She came out into a supportive family and school environment before the Florida legislature passed “Don’t Say Gay or Trans.”
I wish for every child to have such an uneventful coming out experience, but “Don’t Say Gay or Trans” has changed it for the worse. Shortly after the law was passed, S.S. experienced and witnessed censorship in her school. Florida is trying to turn back the clock. “Don’t Say Gay or Trans” makes queer futures unimaginable for the youngest members of my community.
Because of Florida’s crusade against queer and trans people, I cannot be the role model I needed when I was young.
