PolitiFact FL: Can you ‘say gay’ in school? Explaining settlement over LGBTQ+ ‘instruction’

By Grace Abels

On March 14, 2024

Two years after Florida’s governor received national attention over a new law restricting LGBTQ+ instruction in schools, the state reached a settlement with plaintiffs who said the law was unconstitutional.

Critics and some media outlets panned the law, nicknaming it “Don’t Say Gay.” LGBTQ+ advocates sued over the measure, saying it was vague enough that classroom teachers feared being targeted and fired for merely mentioning their gay partners or for discussing LGBTQ+ identity in the classroom.

As news of a settlement over the Parental Rights in Education Act broke March 11, both sides appeared to proclaim victory.

“After nearly 2 years of fighting DeSantis’ “Don’t Say Gay or Trans” law in the courts, we’ve reached a historic settlement with the state that puts an end to some of the most dangerous impacts of this law for students, parents, & teachers,” statewide LGBTQ+ advocacy group Equality Florida, one of the plaintiffs, said on X.

Gov. Ron DeSantis’ office, meanwhile, issued a press release declaring the settlement “a major win against the activists who sought to stop Florida’s efforts to keep radical gender and sexual ideology out of the classrooms.”

“Their judicial activism has failed,” the press release said. “Today’s mutually agreed settlement ensures that the law will remain in effect.”

DeSantis signed the legislation into law in March 2022. It prohibited “classroom instruction by school personnel or third parties on sexual orientation or gender identity” in kindergarten to third grade “or in a manner that is not age-appropriate or developmentally appropriate for students in accordance with state standards.” The Florida Board of Education later expanded the law’s applicability through grade 12.

When LGBTQ+ advocates and others dubbed the measure “don’t say gay,” Republicans pushed back. The bill never says the word “gay” is not allowed in school, although advocates argued the law would send a message that could extend beyond lesson plans and assigned readings into what teachers can say about their families, what photos can be displayed in classrooms or what books can be on shelves.

The eight-page court settlement does not change the statute’s text, but seeks to clarify what falls under its purview. The state in filings to plaintiffs had already argued many of the points the court settlement expanded upon. The settlement requires all Florida school boards to receive a copy. One LGBTQ+ advocate noted, however, that the settlement does not require districts to reexamine or change policies they may have already enacted in response to the law.

Here are four things we learned from reading the settlement:

The law pertains to instruction, not ‘mere discussion.’

The settlement says the “statute restricts only teaching on the topics of sexual orientation and gender identity in a classroom setting,” not “mere discussion of them.”

“Typical class participation and schoolwork are not ‘instruction,’” it says.

Teachers may not use books to teach about sexual orientation or gender identity. But they would be “free to ‘respond if students discuss … their identities or family life,’” and “provide grades and feedback,” if a student, for example, writes an essay about their LGBTQ+ identity, the settlement says.

Students and teachers can refer to a person’s family. And the law does not prohibit gay teachers from keeping photos of their spouses on their desks.

“Just as no one would suggest that references to numbers in a history book constitute ‘instruction on mathematics,” the statute does not prohibit “incidental references in literature” to LGBTQ+ identity, the settlement says.

Such references do not violate the statute “any more than a math problem asking students to add bushels of apples is ‘instruction on’ apple farming,” the settlement says.

Under this law, teachers can still post “safe space” stickers, sponsor LGBTQ+ clubs and intervene in bullying cases.

The law does not prevent school employees from intervening in bullying cases that target LGBTQ+ students. Employees need not remove “safe space stickers,” because they do not amount to classroom instruction. Gay-Straight Alliance clubs are not prohibited either under this statute.

Settlement clarifies the law prohibits instruction on any sexual orientation, including heterosexuality.

The law applies equally to instruction about sexual orientation and gender identity, whether it is LGBTQ+ or not.

“The statute does not target ‘sexual orientations and gender identities that differ from heterosexual and cisgender identities,’” the settlement says. “For example, it would violate that statute to instruct students that heterosexuality is superior or that gender identity is immutable based on biological traits.”

Attorney Simone Chriss, director of the Transgender Rights Initiative at Southern Legal Counsel Inc., who is in litigation with the state over other LGBTQ+ matters, told PolitiFact that she is concerned that the settlement’s language is contradicted by another legislative measure that became law in 2023. H.B. 1069 says, “It shall be the policy of every public K-12 educational institution that is provided or authorized by the Constitution and laws of Florida that a person’s sex is an immutable biological trait and that it is false to ascribe to a person a pronoun that does not correspond to such person’s sex.”

Other statutory restrictions affecting educational materials and educators’ use of gender-affirming pronouns remain.

Although the Parental Rights in Education Act may not pertain to library books because they aren’t in themselves “classroom instruction,” the settlement clarifies that other sections of Florida law that govern these materials remain in effect.

The settlement doesn’t affect 2022 legislation that has been used to remove books from libraries, for example.

Also, H.B. 1069, prohibits the use of gender-affirming pronouns and honorifics in schools. That means transgender teachers still face limitations on how they communicate with students.

This piece was republished from LRN.