Dive Brief:

• A Florida bill titled “Parental Rights in Education" would bar teachers from discussing sexual orientation or gender identity with younger students. 

• Under the legislation, dubbed “Don’t Say Gay” by opponents, parents would have a green light to sue school districts violating the bill for injunctive relief, which would require districts to fall in line with the legislation. It also would allow parents to sue for their own damages, attorney fees and court costs. 

• While the legislation has the support of Florida Gov. Ron DeSantis and has passed the first of three Senate committees before moving to the House, it could run afoul of a host of civil rights protections, including Title IX, advocates and lawyers warn. 

Dive Insight:

The legislation specifically prohibits educators from encouraging “classroom discussion about sexual orientation or gender identity in primary grade levels or in a manner that is not age-appropriate or developmentally appropriate for students.” The bill does not define the terms “age appropriate” or “developmentally appropriate.” 

Advocates of the bill say it aims to defend parental rights and keep children from learning about sexual identity and orientation until they are old enough to understand the topics. 

“The bill is designed to keep school districts from talking about these topics before kids are ready to process them,” said Florida Rep. Joe Harding, co-sponsor of the bill, in a video. Harding said restrictions on discussing sexual orientation and gender identity would apply to students in grades K-3. 

The bill’s other clauses would ensure parents can access their children’s educational records and prohibit districts from keeping parents in the dark about students’ mental, emotional or physical health, or related school services, unless school personnel believe that information would result in harm to the student. “I don’t think it’s controversial to empower parents,”  Harding said.

Critics of the legislation, however, say the bill — and others similar to it — aim to censor schools and curriculum.

“They hide behind the guise of parental rights, but really when you read what these laws do, they allow anybody in the community to … challenge any resource and have it removed,” said Nadine Smith, executive director of Equality Florida, in a press briefing. 

“This is state action and censorship in denying people access to information and turning schools into nothing but propaganda factories that are intended to erase uncomfortable realities and history and the lingering impacts.” 

According to advocates, at least 15 bills pending in eight state legislatures aim to roll back school curricula or remove access to library books related to the LGBTQ community.

White House Press Secretary Jen Psaki also commented on other similar legislation in a press conference. 

“Make no mistake, this is not an isolated action in Florida,” Psaki said. “Across the country we’re seeing Republican leaders taking action to regulate what students can or cannot read, what they can or cannot learn, and — most troubling — who they can and cannot be.” 

According to legal experts and advocates, Florida’s bill and others could violate Title IX, in addition to other civil rights protections like the First and 14th Amendments.

“A student who is heterosexual can learn about the history of people like them, but homosexual students cannot,” said Jackie Wernz, a partner at Thompson & Horton, a law firm that represents public schools, and a former lawyer for the Office of Civil Rights, in an email. 

However, the Title IX violation is not as clear as with other laws, such as those prohibiting transgender students from participating on sports teams of their choice. 

The Biden administration has announced its support for LGBTQ students in the past and said Title IX provides protections for that community. 

“I want every member of the LGBTQI+ community — especially the kids who will be impacted by this hateful bill — to know that you are loved and accepted just as you are. I have your back, and my Administration will continue to fight for the protections and safety you deserve,” Biden said in a tweet, directly responding to the Florida legislation. 

“The bill is obviously going backwards in terms of Title IX, where we are clearly seeing the weight of legal precedent extending to prohibit discrimination on the basis of sexual orientation and gender identity,” said Kim Pacelli, a Title IX expert who conducts trainings for the Association of Title IX Administrators, in an email. 

In Florida, for example, the 11th Circuit interpreted Title IX to include gender identity in a 2020 decision in Adams v. School Board of St. John’s County. In that case, the appeals court upheld a lower court’s decision that a school district violated Title IX and the 14th Amendment when it barred a transgender student from accessing the boy’s bathroom.

U.S. Secretary of Education Miguel Cardona has also said all students “deserve the opportunity to learn and thrive in schools that are free from discrimination.”  

“So it’s strikingly contrary in spirit, of course, to have a state law come in attempting to bring an abrupt halt to identity discussion where federal law mandates a response following reports of harassment or discrimination,” said Pacelli. 

“It’s hard to imagine how school districts will be able to synthesize their obligations to provide training to staff under Title IX, while being prohibited from doing so under the Florida bill.”