On March 28, the Floridian governor approved bill number 1557, entitled “Parental Rights in Education,” officially establishing the bill as law. Since its introduction on January 11, the bill has been a source of extreme controversy. Despite only affecting education in Florida, the bill has drawn nationwide criticism, with opponents calling it the “Don’t Say Gay” bill. In the last few weeks, more states, primarily in the South, have proposed similar bills in their statehouses.
But what exactly does this bill (and its offshoots) say? There has been much confusion about the content of the new law. This is primarily shown through the common retort by supporters that nowhere in the bill is the word “gay” ever mentioned. However, the confusion is actually made worse by reading through the bill. The preamble states that the goal of the bill is to prohibit “a school district from encouraging classroom discussion about sexual orientation or gender identity in primary grade levels.” However, the preamble is not binding law; it’s just flair. The actual text of the law mandates that “classroom instruction by school personnel or third parties on sexual orientation or gender identity may not occur.” The difference here is that this only forbids discussing sexual orientation and gender identity as a part of the school’s curriculum, as opposed to outlawing discussion altogether.
However, Charlton Copeland, a professor at the University of Miami Law School and prolific writer on LGBTQ issues, says that “One of the things I would have told my students in the fall when I taught them statutory interpretation, and one of the things that courts certainly do, is to look at the preamble to assess, ‘Well, what’s the scope of that term called ‘instruction’? And the preamble seems to have a conception of what is prohibited that is much broader when we might think of a cramped conception of ‘instruction.’” So it’s possible that there’s more to the wording than there appears on the first reading. This confusion can also appear in practice. Clay Calvert, a professor at the University of Florida College of Law who specializes in freedom of speech, says that gay rights are inexorably linked to our country’s constitutional history. “If a student raises a question that is not part of the lesson plan or the instructional plan of a teacher, but that question ties to sexual orientation or gender identity, then what may the teacher say at that point?” Calvert said. “Am I teaching about what the Constitution says in that case, or am I teaching about sexual orientation?”
Despite the confusing nature of the bill, many other states have begun adopting their own forms of this bill: Alabama, Arizona, Georgia, Indiana, Iowa, Kentucky, Louisiana, Missouri, Ohio, Oklahoma, South Carolina and Tennessee have all introduced bills outlawing LGBTQ instruction in various ways. These, so-called by their proponents, “no promo homo” laws all arose soon after the success of Florida bill 1557. Some states are expressing their vehement disapproval, however. Eric Adams, mayor of New York City, expressed his concern by organizing a billboard campaign throughout Florida. The billboard would read “People say a lot of ridiculous things in New York, ‘Don’t Say Gay’ isn’t one of them.” The intention is at least in part to encourage citizens of more restrictive states to consider moving to New York, stimulating the city’s economy.
A big part of why these bills have gotten so popular recently has to do with more than just sexual orientation and gender identity. As Ames Simmons, a Duke law senior lecturing fellow says, “What is truly concerning is that these anti-LGBTQ bills have been coupled with legislative proposals that forbid teaching about structural racism and slavery, and patriarchy and sexism, on the grounds that these concepts make others uncomfortable.” In recent months conservative commentators and politicians have focused on the implementation of racial consciousness or “Critical Race Theory” in school programs. The idea that parents should have some control over their child’s curriculum has no doubt sprung to the forefront of their minds because of these worries.
It is unlikely that all of these bills will see as much success as the one in Florida, but their very existence is indicative of a new trend. While sexism, racism and homophobia are certainly factors in some areas of the country, the actual text of the bill shows that this concern has less to do with those characteristics and more to do with the perceived attack on our children by a leftist agenda. Sexual orientation and gender identity are merely vehicles of that concern. However, that does not discount the effects that this could have on the public education system. Perhaps this will unify the right and left around a common goal: greater school choice.