Respect Equality

Does Florida’s ‘Don’t Say Gay’ bill violate the First Amendment?

Story at a glance

  • Questions have been raised as to whether Florida’s so-called “Don’t Say Gay” bill violates the First Amendment rights of teachers and students in public primary schools in the state.
  • First Amendment experts told Changing America that the legislation could possibly infringe on speech rights of teachers, even though their speech rights are already curbed as public employees.
  • The bill is scheduled for a floor vote in the state Senate Monday, where it is expected to pass, and will then move to the desk of Gov. Ron DeSantis, who is expected to sign it into law.

All eyes will be on Florida Monday as the so-called Don’t Say Gay bill goes before the full state Senate for consideration. The legislation, officially known as the Parental Rights in Education bill, would prevent primary school teachers from addressing sexual orientation or gender identity in a way that is “age inappropriate or developmentally inappropriate” for students.

Should it be approved by Florida’s Republican-controlled Senate, it will head to the desk of Gov. Ron DeSantis (R), where it is expected to be signed into law and take effect this summer.

The bill’s easy passage through the state legislature so far has ignited national outrage, with students, LGBTQ+ advocacy groups, Hollywood actors and even the White House condemning it as hateful and dangerous. 

Many worry that the bill would have a detrimental impact on Florida’s LGBTQ+ youth, who already face greater rates of depression, anxiety, self-harm and suicide. Others say the bill represents a clear violation of the First Amendment, which protects the freedom of speech.


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It’s a bit more complicated than that, experts say.

The bill as it currently reads only restricts classroom “instruction” on gender identity and sexual orientation, compared to an earlier version which prohibited school districts from “encouraging” related discussions among students within school walls.

While the bill’s new language does not prevent young students from communicating freely among themselves, what is now restricted is a teacher’s ability to chime in, though that in and of itself is not unconstitutional because the speech rights of public employees are already checked.

“When a teacher in the classroom in a public school is delivering the curriculum that they are assigned to teach, their First Amendment rights are going to be very limited in that context,” Clay Calvert, the director of the Marion B. Brechner First Amendment Project at the University of Florida, told Changing America.

But Calvert warned of a very likely “chilling effect,” where teachers would be inclined to censor themselves over fear of retribution from parents, who under the bill would be granted greater authority to sue school districts believed to be in violation of “Don’t Say Gay.”

According to the text of the bill, school district personnel are required to encourage students to discuss matters like sexual orientation or gender identity with their parents, should those topics come up in the classroom.

In that case, the speech rights of teachers, while they are speaking informally, may be infringed upon.

While educators do not have unfettered authority over classroom discourse, not everything they say to their students is “scripted,” Kevin Goldberg, a First Amendment specialist with the nonprofit Freedom Forum, told Changing America, and there is a concern that teachers may inadvertently violate the law.

“What if a parent walks in [to the classroom] and they’re part of a same-sex couple, and somebody asks the teacher to explain that?” Goldberg said. “What is the teacher supposed to say? They’re probably not encouraging classroom discussion, but are they instructing?”

Should the bill become law, Goldberg said he expects it to be challenged on First Amendment grounds almost immediately.

“Even if teachers are not punished, they will chill their own speech, they will self-censor,” he said. “There’s no doubt about it.”

Goldberg added that students — even primary school students — are protected under the First Amendment, and have a right to ask questions in and out of the classroom.

“This might actually infringe on the students’ First Amendment rights to have conversations that they want to have in school,” he said. “We’re a long way from constitutional on this one.”


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