What Does the ‘Don’t Say Gay’ Bill Really Say?
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For all the fuss it’s caused, Florida’s so called “Don’t Say Gay” bill is very unclear about what is actually says. The New York Times dissected the bill, below are the highlights but ultimately it raises more questions than answers.
Here are key passages in the bill:
- Instruction on gender and sexuality would be constrained in all grades.
- Schools would be required to notify parents when children receive mental, emotional or physical health services, unless educators believe there is a risk of “abuse, abandonment, or neglect.”
- Parents would have the right to opt their children out of counseling and health services.
- Parents could sue schools for violating the vaguely written bill, and districts would have to cover the costs.
- Florida would rewrite school counseling standards.
Instruction on gender and sexuality would be constrained in all grades.
Lines 97-101: Classroom instruction by school personnel or third parties on sexual orientation or gender identity may not occur in kindergarten through grade 3 or in a manner that is not age appropriate or developmentally appropriate for students in accordance with state standards.
This is the sentence that has earned the bill the “Don’t Say Gay” nickname.
The language is vague and subject to interpretation. The preamble of the bill further muddles matters. It prohibits not only “instruction” around gender identity and sexual orientation, but also “classroom discussion” of these topics.
“Classroom instruction” could mean eliminating books in the classroom with L.G.B.T.Q. characters or historical figures. No “classroom discussion” is a broad phrase, and could mean that teachers with a student with gay parents should not talk about those families with the entire class.
And while the language of the bill highlights the youngest students, all grades are affected by the provision requiring gender and sexuality to be discussed in ways that are “age appropriate or developmentally appropriate.” Again, those terms are highly subjective. Parents, school staff and students are likely to clash over what this means.
Schools would be required to notify parents when children receive mental, emotional or physical health services, unless educators believe there is a risk of “abuse, abandonment, or neglect.”
Lines 67-78: In accordance with the rights of parents … adopt procedures for notifying a student’s parent if there is a change in the student’s services or monitoring related to the student’s mental, emotional, or physical health or well-being and the school’s ability to provide a safe and supportive learning environment for the student. The procedures must reinforce the fundamental right of parents to make decisions regarding the upbringing and control of their children by requiring school district personnel to encourage a student to discuss issues relating to his or her well-being with his or her parent or to facilitate discussion of the issue with the parent.
This parental-notification requirement appears to apply to any student, regardless of age or circumstances — the student could be seeking health services for gender issues, sexuality, depression, substance use, a parental divorce or any other challenge.
It is unclear how strictly schools would follow the directive to inform parents of every “change” in a student’s health services. For example, if a child casually reaches out to a counselor to discuss stress about grades, and in conversation also brings up another mental health concern, would parents be contacted?
Parents would have the right to opt their children out of counseling and health services.
Lines 106-109; 114-118: At the beginning of the school year, each school district shall notify parents of each healthcare service offered at their student’s school and the option to withhold consent or decline any specific service. … Before administering a student well-being questionnaire or health screening form to a student in kindergarten through grade 3, the school district must provide the questionnaire or health screening form to the parent and obtain the permission of the parent.
This provision requires schools to create an opt-out procedure for mental and physical health care services, which could include individual counseling or support groups. It takes particular aim at the growing practice of using mental health or social-emotional screening questionnaires, which are intended to determine what students might need. They may ask students how often they experience emotions like worry or sadness, and to what extent they enjoy school or have trouble paying attention.
Parents could sue schools for violating the vaguely written bill, and districts would have to cover the costs.
Lines 129-130; 146-151: If a concern is not resolved by the school district, a parent may …. Bring an action against the school district to obtain a declaratory judgment that the school district procedure or practice violates this paragraph and seek injunctive relief. A court may award damages and shall award reasonable attorney fees and court costs to a parent who receives declaratory or injunctive relief.
This is the enforcement mechanism that supporters say would give parents a way to hold schools accountable, and which educators say could create a chilling effect.
Shani M. King, a University of Florida law professor, noted that the idea of deputizing parents to enforce a law — at schools’ expense — had previously been used in legislation limiting discussion of critical race theory, resulting in schools pre-emptively canceling events and removing reading materials from shelves, in order to avoid expensive litigation. The combination of the bill’s broad, vague language and punitive enforcement mechanism could lead to a similar dynamic.
