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DeSantis signs bill limiting LGBTQ talk in school and opens door to civil lawsuits by parents of children who believe the law was violated, even by third parties

By LawCommentary | Posted on March 17, 2023

Florida Gov. Ron DeSantis, seen here on Feb. 24, signed a bill into law Monday that restricts the education of LGBTQ topics in the state's public schools. (Joe Raedle/Getty Images via NPR)

Florida Gov. Ron DeSantis, seen here on Feb. 24, signed a bill into law Monday that restricts the education of LGBTQ topics in the state's public schools. (Joe Raedle/Getty Images via NPR)

Last week, Florida Governor Ron DeSantis signed House Bill 1557, Parental Rights in Education, which impacts children from kindergarten to third grade. The bill follows on the heels of Florida’s 2022 Parents’ Bill of Rights.

The controversial new law goes above and beyond classroom instruction, however. According to a press release issued from the governor’s office, the new mandate “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.”

In 2022, the Florida Parents’ Bill of Rights made it illegal for anyone, including teachers or third parties, to discuss sexual orientation or gender identity in schools.

At first glance, HB 1557 appears clear in its restrictions. The bill prohibits “classroom instruction by school personnel or third parties on sexual orientation or gender identity” in “kindergarten through grade 3 or in a manner that is not age-appropriate or developmentally appropriate for students in accordance with state standards.”

The vagueness and ambiguities in the bill, however, quickly become apparent. For example, what constitutes “classroom instruction”? Would it include or exclude informal discussions about sexual orientation or gender identity between a teacher and an individual student in response to a question raised by the student? What if the discussion were held between the teacher and the entire class?

Also, what is a manner that is “age-appropriate or developmentally appropriate for students in accordance with state standards”? This section of the new law would seem to apply to students beyond the third grade, but no actual direction is given as to what type of instruction would be okay and what could land the teacher and school district in legal hot water.

Another troubling aspect of HB 1557 refers to the “mental, emotional, or physical health or well-being” of students, and the “change in services” a student might be receiving in this regard. The new law requires school districts to notify parents of a change in this area and at the same time prohibits schools from creating policies that would allow school personnel not to notify parents about a “student’s mental, emotional, or physical health or well-being, or a change in related services or monitoring.” This section of the law also prohibits school district policies or procedures that would “encourage or have the effect of encouraging a student to withhold from a parent such information.”

What is being referred to here? Without being explicit, the intent of this legislation is to require school districts to inform parents if their child comes out to a teacher, counselor or other staff member regarding their sexual orientation or gender identity. Schools are now required to inform parents of such a disclosure and are forbidden from keeping such information confidential or encouraging a student to withhold such information from the parents. An exception to the law exists “if a reasonably prudent person would believe that disclosure would result in abuse, abandonment, or neglect.”

Legally, would this mean young children who may say they want to dress like a boy, if they are a girl, or vice versa, must be outed to their parents by the school? Since the law is unclear, the decision might rest on the school’s interpretation of whether such disclosure involves a student’s “mental, emotional, or physical health or well-being” or not. The stakes for teachers and school districts are high, and the consequences of misinterpreting or misapplying the law are severe.

If educators do not follow the new law, they will not be fined or sent to jail. It is not a misdemeanor or criminal offense. However, this bill mimics the Texas abortion laws in creating a private right of action. If any parent or guardian believes school staff violated the new law, they can file a civil lawsuit against the entire school district or any school official they deem is in violation of the law.

A possible scenario could include a male teacher who identifies as a woman and has taught at the school for years. Would any classroom discussion of the teacher’s gender identity violate the law? What about the fact that the teacher is dressing in conformity with their expressed identity, absent any classroom discussion at all? Could this teacher, due to their gender identity, be sued by parents for just being themself?

If such is the case, it would seem that the school district would need to fire the teacher to avoid violating the law. If so, would Florida schools now be tempted to just not hire anyone who is gay or identifies as a different gender than the typical population? Discrimination like this would be in direct violation of Title VII’s prohibition against sex discrimination, which was held by the U.S. Supreme Court in Bostock v. Clayton County to include gender identity and sexual orientation. In that regard, HB 1557 sets up a conflict between federal and Florida law.

Additionally, the U.S. Department of Justice has made it clear that the court’s reasoning in Bostock should apply to Title IX as well, which prohibits sex discrimination in education programs and activities services offered by schools.

The complications of this new law are never-ending. What happens if a first grader talks about her parents, who are both men or both women? Can another student’s parents sue the school because the idea of a same-sex couple was being discussed at school? What happens if a teacher in a same-sex relationship has a framed photo on his desk? Can he be sued?

When the Florida legislature discussed the Parental Rights in Education bill in the Florida Senate, Democratic Senator Lori Herman asked what would happen if a child wanted vegetarian food instead of meat. Republican Senator Dennis Baxley, the sponsor of the bill, did not directly answer, and instead said the parent should not be “left in the dark.”

Many critics and education experts strongly disagree with this new law. Governor DeSantis said he is being targeted by the “woke” education agenda.

“In Florida, we are not going to back down to the woke mob, and we will expose the scams they are trying to push onto students across the country,” he said. “Florida students will receive an education, not a political indoctrination.”

The bill, with a surveillance approach to education plus a civil lawsuit option for angry parents, is now in effect in all Florida elementary schools.

Gay rights organizations have sued Florida over the new Bill. They say the new law violates the constitutional rights to free speech, due process of students and families, and equal protection of the laws.

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