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‘Because of sex’ approach to protecting trans people

Many analyses of Bostock decision missed the real history



(Washington Blade file photo by Michael Key)

“Here, I thought, looking around me, is where it all changed, because I was still too young to understand that history is not simply made up of moments of triumph strung together like pearls. I didn’t know that large changes were made up of many small ones, and of moments of suffering and backsliding and incremental, selective progress; unnecessary sacrifices and the opportunistic, privileged and lucky walking forward over the vulnerable and the dead.” —Carmen Maria Machado

The road to LGBTQ equality has been long and winding, made up, legally, of two paths — sex (gender) stereotyping and “because of . . . sex.” Until the Bostock decision last month we had a quantum mechanical, “Schrödinger’s Cat” causal conundrum — would the decision be based on “sex” as written in Title VII of the 1964 Civil Rights Act, or “sex stereotyping” as developed in the landmark 1989 Price Waterhouse v. Hopkins Supreme Court decision? Many guessed it would be the former, “because of . . . Gorsuch” and his penchant for textualism, but that didn’t stop plaintiff Aimee Stephens’ lawyer, David Cole, from arguing with the latter. Turns out it was the former, but before I trace the social history of that path, I would like to point out a delicious irony.

It’s long been understood that the modern Supreme Court rarely leads, and usually follows, public opinion. That opinion is shaped by the people, and primarily by the people’s activist corps. In the case of the gay rights movement, the people universally known through the 1960s as homosexuals became known in the 70s as gay people. Why? Because the “sex” in “homosexual” directed one’s gaze to sex acts, which is still what most Americans conjure in their minds when they hear the word “sex.” And since many were repelled by the thought of gay sex, it became evident a different, de-sexed, label was necessary.

Similarly with the trans community, which had been universally known as the transsexual community through the 1980s, and which de-sexed “transsexual” to “transgender” in the ‘90s (the first national trans rights group, founded by Riki Wilchins and Denise Norris in 1993, was called “Transexual Menace,” and the second, was the “National Transgender Advocacy Coalition,” in 1999), and then finally just the single syllable “trans” in the aughts, to match the single syllable, “gay.” Language matters. Just as Americans viewed homosexual people through the lens of their sex acts, they viewed transsexual people the same way, often reduced to sex workers and homicidal maniacs (“Dallas Buyer’s Club,” 2013 and Hitchcock’s classic, “Psycho,” 1960).

So, today, gay and trans individuals have their employment rights, and soon full protections with the Equality Act next year, because of a return to the modern source of those rights, the Civil Rights Act of 1964, and “because of . . . sex.” Not gender, but sex, and, refreshingly so, but devoid of any implications of sexual activity. Justice Gorsuch, interestingly, returned to using the archaic term “homosexual” throughout his opinion, but did not revert to “transsexual,” and treated Ms. Stephens respectfully in his comments.

How did we get here? In the weeks following the decision many of the analyses of the decision missed the real history. That history is written by the victors, but it also very much matters which victors do the writing.

The path of “because of . . .” and “but for” sex began in the 60s, as Justice Gorsuch mentioned: Not long after the law’s passage, gay and transgender employees began filing Title VII complaints, so at least some people foresaw this potential application.

Trans persons won some lower court decisions in the ‘70s, before the religious and feminist backlash began in 1979 with Janice Raymond and then the Reaganites. Trans plaintiffs lost in the late ‘70s and ‘80s because transsexualism was not recognized as a form of sex (Holloway v. Arthur Andersen, 1977, Sommers v. Budget Marketing, 1982 and Ulane v. United Airlines, 1984). And then, in 1989, came Price Waterhouse v. Hopkins, and the landscape utterly changed for trans plaintiffs.

The first, and until Bostock, only SCOTUS decision (and victory) for a trans plaintiff occurred in 1994, in a unanimous Eighth Amendment decision written by Justice Souter on behalf of the plaintiff, a black trans woman, Dee Farmer. The next federal appeals court case, and the first in a string of victories leading to Bostock, was Smith v. City of Salem in 2004, won on both sex and sex stereotyping concerns, followed by another Sixth Circuit case, Barnes v. City of Cincinnati in 2005. Philecia Barnes was also a black trans woman and she won “because of sex.” The only hiccup in this long chain of victories was Etistty v. Utah Transit Authority in the 10th Circuit in 2007. This was followed in rapid succession by the blockbusters: Schroer v. Billington, 2008; Glenn v. Brumby, 2011; and Macy v. Holder, 2012.

It was the unanimous Macy decision at the EEOC, led by Commissioner Chai Feldblum, that protected trans persons in all 50 states, and cemented the “because of sex” approach to protecting trans persons. Professor Feldblum, a major author of the 1991 Americans with Disabilities Act (ADA), had been living in Takoma Park, Md., in Montgomery County in 2007-08 when I led the campaign for Basic Rights Montgomery to pass and defend the county gender identity law. That law generated the first bathroom bill backlash in the United States, and Professor Feldblum, who had been a believer in the doctrine that trans status was a function of sex and, therefore, covered by Title VII, was further encouraged to pursue it if she ever got her chance in the federal government to make it a reality. Presciently, these were her words 20 years ago: “But a strict textualist approach might work as well (or even better) for those seeking to achieve broad protection for gay people and transgender people. Under such an approach, the intent of the enacting Congress (or state legislature) is not as important as the words the legislature chose to use.”

It had been obvious to me, as well, as I had been teaching and lobbying for years on the medical basis of transsexualism being rooted in brain sex. Research begun in 1995 had been making that very plain. But few LGBTQ attorneys, with the notable exception of Katie Eyer, believed in the possibility of progressive textualism, even though the Constitution is the product of the Enlightenment.

So after being nominated by President Obama to the Equal Employment Opportunity Commission (EEOC) and confirmed by the Senate, Professor Feldblum looked for the right case and found it in Mia Macy. She then did the same for David Baldwin in the first national gay rights victory, Baldwin v. Foxx, in 2015.

Just looking at these cases it was clear that the federal courts (and some state courts as well) were beginning to respect trans persons enough, including black trans women, beginning in the ‘90s to not only not summarily throw them out of court, but to seriously apply the “because of sex” and sex stereotyping arguments to them. All that at a time when fewer than 8% of Americans (in a 2013 poll) admitted to knowing a trans person; when gay people, far better represented in the media and known in their communities, were routinely failing in federal court. Yet there have been post-Bostock analyses by highly respected civil rights lawyers that turn this history on its head. For example, Shannon Minter, the trans attorney for the National Center for Lesbian Rights (NCLR), said: “We’ve always known that our legal arguments are strong and should be accepted, but the reason it took decades for the courts to accept these arguments was because transgender people were so foreign to the courts.”

This is not the first time. After promoting the trans legal case “because of sex” for years, I tried to get the national LGBTQ, and particularly trans, organizations to recognize our success post-Macy. They would have none of it. The lawyers at HRC, the National LGBT Task Force, and even NCTE, the National Center for Transgender Equality on whose board I sat, refused to acknowledge the breakthroughs. To get the word out I had to publish a pamphlet, with attorney Jillian Weiss and activist Riki Wilchins, which was promoted by Masen Davis and the Transgender Law Center, the only nationally oriented trans group willing to get on board. We were also supported by Tico Almeida and Freedom to Work.

Fortunately, thousands of trans persons got the message, and filed claims with the EEOC. Many won, with most settling out of court because, you know, the law matters. Yet others have lived the past eight years in fear and anxiety because our institutions’ lawyers repeatedly said that we had no protections without a decision of the Supreme Court. I countered that it would take years, or might never happen because we were winning all our cases, and without a split at the appeals court level the Court might not even take up the issue. Fortunately for us today, SCOTUS rolled us into the Circuit split on the gay rights cases (Bostock and Zarda), and we pulled the gay community along to victory. No gays left behind. We had not lost a Circuit Appeals case since 2007, the only one in the 21st century, so I, for one, was not surprised.

People who are committing themselves to activism need to understand the history so as to most effectively pursue their goals in the future. LGBTQ folks need to understand the bureaucratic resistance within their own movements, from the most well-meaning people. It is, indeed, always a long and winding road to liberty and equality.

Dana Beyer is a longtime D.C.-based advocate for transgender equality.



Queer activists: ‘I told you so’ as DeSantis escalates queer erasure

‘It is time to recognize the situation in Florida as the ticking time bomb that it is’



(Washington Blade file photo by Michael K. Lavers)

In a shocking escalation for too many, and a somber expectation for too few, the Florida legislature will soon consider legislation to effectively disband measures to facilitate tolerance for LGBTQ+ employees in the workplace.

In addition, the proposed law would effectively force the closure of many LGBTQ+ and progressive organizations that have led the opposition to DeSantis’ administration. Specifically, HB-599 mandates that: employees can not be required to use a person’s preferred pronouns, employees can not provide their preferred pronouns and employers cannot exert discipline over homophobia/transphobia.

Most chillingly, the bill would not allow state-funded charities to require employees to undergo any “training, instruction or other activities” relating to gender or sexualities. The implications of these regulations are transparently authoritarian.

As I alluded to before, this development has been received with a puzzling degree of surprise. Evidently, such has been the case following nearly every new outrageous headline summoned by DeSantis’ administration. However, these hysterical reactions are becoming decreasingly indicative of a changing tide in public opinion and more so of an irritating obliviousness among those of us who have been ringing the alarm bells since the very start of DeSantis’ all-consuming battle against “wokeism” in Florida. 

Take the infamous “Don’t Say Gay Bill” for example, which served as the catalyst for the current queer resistance to DeSantis in earnest. That legislation prohibited discussion of Gender Identity and Sexual Orientation in Kindergarten through 3rd Grade classrooms. Many were content to dismiss concern, taking the law at face value and assuming it would be confined to K-3 , but even then many of us on the ground knew it was just the first step before Queer erasure was expanded through 12th grade, and we were right.

At the same time, DeSantis initiated a hostile takeover of many public universities, and put in place measures to censor resources and education serving students of color and LBGTQ+ students on college campuses as well. 

LGBTQ+ erasure (also known as queer erasure) refers to the tendency to remove lesbian, gay, bisexual, transgender, asexual and queer groups or people (i.e. the LGBTQ+ community) intentionally or unintentionally from record, or to dismiss or downplay their significance.

Now, with their heinous agenda successfully forced upon Florida’s public school system, HB-599 suggests that Florida Republicans are prepared to expand the scope of their anti-LGBTQ+ regulations ten-fold. 

Ironically, supporters of laws like “Don’t Say Gay” and “Stop WOKE,” who rejected being labeled a homophobe by asserting their simple desire “to keep that stuff away from kids,” have allowed their fixation on a faux slippery slope to advance one that is actually real.

Upon HB-599’s implementation, not even grown adults would be expected to recognize and respect the existence of queer people in their workplace. 

But as per usual, the queer community in Florida does not even have the luxury of agonizing over just this bill here and now, because we know that the next one will be even worse. Will they extend the ban on gender-affirming care to all adults? How long until adoption rights for queer couples are on the chopping block? Are we at the point where Ron DeSantis, in his quest to out-fascist Trump, embraces nullification and disregards all federally protected rights for minority groups?

As they have proved over and over again, Florida Republicans never cared about merely protecting the innocence of children. In reality, this goal was always a cheap gimmick to assuage so many useful idiots of their complicity in a full-scale war to eradicate the dignified existence of marginalized communities.

While it is decidedly more pleasant to hope for the best that this latest attack on queer people will finally be the last, it is painfully naive in reality. We know exactly how this culture war ends, and it is that of how similarly reactionary movements have concluded throughout history: with total rollbacks in the rights of the targeted minority group at hand. 

Thus, it is time to recognize the situation in Florida as the ticking time bomb that it is, which demands unignorable direct action in conjunction with federal intervention to hold Governor DeSantis accountable to the Constitution he so flagrantly tramples upon. However, with such a rigid institutionalist like Joe Biden at the helm, the latter unfortunately seems unlikely.

The former, conversely, is very achievable. I should know, because I founded an organization that is doing exactly that: giving young people the resources they need to resist DeSantis’ brand of politics in their own communities. 

Ultimately, whether you take action to support our movement or not, just make sure the reason you didn’t was not that you thought it wouldn’t get any worse, because I am tired of saying I told you so.

Cameron Driggers is progressive student activist attending the University of Florida. As a highschooler, Cameron led state-wide campaigns to resist anti-queer measures, such as the Don’t Say Gay School Walkouts of 2022.

Presently, Cameron continues to advocate for empowerment of young people to make change as an Organizing Fellow for People Power For Florida.

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Celebrity BEYOND transatlantic cruise: final musings

Corporate PR decline request for interview with captain



Celebrity BEYOND

So there is no misunderstanding about this post: I had a great 14-day cruise on the Celebrity BEYOND. A beautiful ship, with great officers, crew, and entertainers. I am booked on two more Celebrity cruises at this time. The Flora to the Galapagos in February, and the ASCENT transatlantic from Barcelona, next October. I also look forward to booking two more cruises in 2025. I drafted this column a few hours after leaving the ship while sitting at the airport waiting for my flight to D.C. 

We were welcomed to board the beautiful Beyond at the port of Civitavecchia, Italy, at 11 a.m. on Oct. 30. We dropped our luggage off as directed and then went through the metal detectors. Many of our group had reservations in the Retreat and were shown to a separate area to be boarded. After a short wait, when I was told there was an issue, I found out they just wanted to welcome me as a journalist they knew would be cruising with them and blogging from the ship. Then they directed us to the gangway to board. We were told our luggage would be delivered shortly. Turns out, many of us, including those in the Iconic suites, were still waiting for some luggage at 6:00pm. Mildly annoying, just not the welcome you want.  On the other hand, my cabin was ready, and the attendant gave me a great smile, and welcomed me to the ship. I told him I needed hypoallergenic bedding and he had it there, and changed the bedding, within 15 minutes. I am on my own in the cabin and he didn’t have all that much to do for the two weeks, but was always available, and always smiling. 

I was then left to my own devices and headed out to tour the ship. It is beautiful. I have been on other Celebrity ships including the EDGE, and did transatlantic cruises on the APEX the last two years. The BEYOND has some wonderful new additions. The Sunset Bar, designed by Nate Berkus, is beautiful; bigger, with plenty of seating. The retreat lounge has been expanded and changed in some good ways. Over the two weeks I was incredibly impressed with the concierge staff, Dalton was great, and with deck 17. The added space, designed in a great way, was perfect for relaxing, whether you wanted shade, or sun. The little pool was nice, and the bar and restaurant tables still great. Towels and blankets plentiful, with an always attentive crew. The garden deck was great with the plunge pool and the big pool deck was wonderful. The new hot tubs got lots of business.

Celebrity PR knows I write and publish a blog during my cruises, and for the past few years have written columns about Celebrity with the knowledge and help of their PR team. I have produced lots of sales for them, based on my published blogs, and columns. Despite that each year they make it difficult to get interviews with the captain and crew, which have always been well received. In the past though difficult, it was always possible. This year it wasn’t. When I asked to do interviews, I was told it would not be possible with the ridiculous statement, “At this time, we are keeping our stories focused on the product and overall travel experience.” Well, anyone who cruises will tell you the captain, officers, and crew, are what make a huge difference in the ‘overall travel experience.’ On the Beyond they were all around the ship chatting with cruisers, so not allowing an interview seemed really questionable. I know Celebrity is ‘LGBTQ+ friendly,’ I have written about that. I wondered if the fact that I would publish the interviews in the largest LGBTQ paper, among other outlets, was something they didn’t want done even though that would make no sense. Whatever the reason, it made no sense. Celebrity promotes and writes about their captains in press releases, using them as lures for travelers. The first woman captain, the first brothers being co-captains. I have actually written stories about them. But there is nothing like doing an interview and finding out why a captain or officer chose this career, a little more about them as people, and their families, and why they chose Celebrity. It would seem getting those stories out is good for the cruise line. Again, dealing with Celebrity PR is one of the most frustrating things a writer can do.

Dealing with the officers once on the ship is great. I arranged a meeting with Hotel Director Christophe Belaubre, whom I had first met last year when he was Hotel Director on the APEX. He is great at his job and Celebrity is lucky to have him. We met in the retreat lounge and chatted a little about issues like the luggage and some other small issues I brought up. Careful not to do an interview. He seemed appreciative to hear about the issues in a nice way from a cruiser. During the cruise I saw how incredibly helpful he was to my friends, and travel agents, Dustin, and Scott, of My Lux Cruise, who hosted a number of parties in their Iconic suite. In fact, I had first met Christophe on the APEX at one of their parties, just after I had interviewed the Captain of APEX, and invited him to the party. He not only came and enjoyed it; he brought Christophe with him. That is how I knew Christophe was going to be on the Beyond this year.  

Now for a few other issues with Celebrity. Again, none of these issues has stopped me from booking cruises, or getting others to book them, but they are annoying. It seems Celebrity is trying to nickel and dime people once they are on board, and I heard lots of people on board make this complaint. When I mentioned these things to the crew, they told me they are hearing them often. Now this is in addition to their cutting back on other perks like pre-paid tips, and OBC. 

One complaint is the additional cost of some dishes in the main dining rooms. When you book a cruise, you expect, at least the food served in the main dining rooms, to be included. Today you find menu items listed with additional prices as if you were in a restaurant in any city. If there are things Celebrity doesn’t want to serve at the price people paid for the cruise, leave them off the menu. I expect to pay extra, and do, for the specialty restaurants, but not in the main dining room. 

Then even in the specialty restaurants, they are trying to get extra money after you have already paid the extra fee to eat there. One example is in EDEN restaurant. Let me first say, it is the best food I had on the ship, and the Chef, David, is incredible. I first met him when he was the chef in EDEN on the EDGE years ago. The issue here is the left side of the menu, a tasting menu of eight courses. Mind you, the same food as on the regular menu on the right side of the menu. But the tasting menu, if you order it with wine pairing for each course, is a whopping $200. Well, if you have a premium drink package, even if you order special wines and they charge you the extra $3 a drink above the package, three times eight is only $24. Everyone we were sitting near called it the same thing, a rip-off, and offensive. Not a look Celebrity should be going for. Again, we ate at EDEN three times during the cruise as the food is fantastic. Just order from the right side of the menu and you will be very happy. 

I had some issues with the food in the main dining rooms as well. The soups were often not really hot, and the some of the pasta dishes, especially one in Cyprus, had so much of the cream sauce it looked, and tasted, like goop. But here the waiters were great and always willing to bring you something else, and did it with a smile, so by the time you finished dinner you were happy. I have to mention how great Raw on Five is, and I enjoyed the Rooftop restaurant even though it was a little windy the night we went. But you leave happy if you have the deep-dish chocolate chip cooking, with vanilla ice cream melting on it.

Now kudos to Celebrity for the entertainment. The shows in the theater, which is an incredible place, were superb. The cast of the Eden Lounge shows, who also perform in The Club, were just as great. I had the pleasure of meeting one of the acrobat/aerialists from Ukraine, and Slavik and his partner Vlad were a pleasure to watch. All the cast, singers, dancers, and acrobats were great. Interestingly, we wanted to invite them to the parties we had in the Iconic suite but apparently, they are told they can’t go. But on this cruise both Christophe, and Captain Leo, said if the cast directors said OK, they would be fine with entertainers being at the parties. I think it is great to let them mingle. It makes the cruise experience that much better. Captain Leo was at the party and everyone enjoyed meeting him there. Contrary to the PR departments response to me, getting to know him made the ‘travel experience’ for some of the most loyal Celebrity cruisers, that much more enjoyable and memorable. 

Another issue was the lack of enough bartenders in the Eden lounge for what were billed as LGBTQ happy hours. They attracted big crowds each evening, of both LGTBQ and straight guests. It was a happening place each evening at 6 p.m. and could have used more servers at the bar. 

I need to mention the incredible artwork on the Beyond. Each of the Edge series ships has great art. Each of us view art from our own perspective, so not everyone likes everything, but there is enough for everyone to appreciate and it definitely adds to the overall ambiance of the ship. The one piece of art I asked Christophe about was the dark tunnel leading to the Eden lounge. I saw two people walk into the dark mirrored walls, and if you were over 5’9 you could easily hit your head on one of the hard silver balls hanging from the ceiling, if you didn’t duck. Seemed it could have been planned a little better. But again, I guess it’s all in the eyes of the beholder, and in general, in my eyes, the art on the Beyond is quite amazing. 

So, in totality, if you read this, you will see the issues I have are with Celebrity Cruises, corporate. Everyone on ship is great. Always smiling, and always working hard to make each traveler’s cruise as great as it possibly can be. For the 100 or so I travel with, they obviously succeed, as we keep booking again, and again, and our group keeps growing. 

One way among others to join us is by contacting my friends, Scott and Dustin, at My Lux Cruise. It is always a pleasure to see old friends, and make new ones every year. It is especially great to see a first time Celebrity cruiser enjoy their experiences on these beautiful ships.

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Florida’s ‘Don’t Say Gay’ laws undermine protections for LGBTQ teachers, students

Measures must be stricken down, enjoined, or otherwise invalidated



Florida Gov. Ron DeSantis (Screen capture via NBC News)

Formally entitled the “Parental Rights in Education Act,” Florida House Bill 1557 amends Florida Statute § 1001.42 to add a new subsection 8(c)(3), which provides: “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.” In May of this year, Florida Governor Ron DeSantis signed House Bill 1069, which has been viewed as expanding H.B. 1557 by requiring that sex education classes in Florida teach that “sex is determined by biology and reproductive function at birth,” and that reproductive gender roles are “binary, stable, and unchangeable.” Among other things, the new bill also broadens the ban on classroom discussions of gender identity and sexual orientation so that it covers pre-kindergarten through eighth grade and prevents employees from using pronouns other than those that correspond with sex assigned at birth. Critics of these laws have labeled H.B. 1557 and H.B. 1069 “Don’t Say Gay” laws. We share these critics’ concerns.

Below, we highlight the potential of these laws to undermine anti-discrimination protections for teachers and students at public educational institutions in Florida and summarize litigation challenging these laws.

On June 15, 2020, the Supreme Court issued a landmark decision in Bostock v. Clayton County, Georgia, 140 S. Ct. 1731 (2020). In a 6-3 decision, the Court interpreted existing federal law to protect LGBTQ individuals from discrimination in employment and public accommodations by recognizing sexual orientation and gender identity as protected categories under Title VII of the Civil Rights Act of 1964. As a result of Bostock, LGBT individuals who work for an employer with fifteen (15) or more employees, and who have experienced discrimination based on their sexual orientation or gender identity, now have the right to take legal action against their employer by filing a charge with the Equal Employment Opportunity Commission and/or taking their employer to court.

In light of the Supreme Court’s decision, the Florida Human Rights Commission issued a notice that clarified that the agency would now broaden its mandate to include combatting discrimination based on gender identity and sexual orientation. Thus, after Bostock, LGBTQ Floridians, including teachers, gained vital anti-discrimination protections at work and in housing under both federal and state law.

Bostock v. Clayton County has been interpreted to protect LGBTQ students from discrimination as well. For instance, in Grimm v. Gloucester County School Board, 972 F.3d 586 (4th Cir. 2020),the U.S. Court of Appeals for the Fourth Circuit relied on Bostock to hold that disparate treatment on the basis of a student’s sexual orientation and transgender status—in this case, barring transgender students from using school restrooms that align with their gender identity—is considered discrimination under Title IX of the Education Amendments of 1972. Id. at 618–19. These protections are especially important for LGBTQ students in conservative states like Florida; these students may face discrimination on a direct level as well as indirectly from institutions and political players who aim to promote homophobic and transphobic rhetoric and policies. 

Unfortunately, the victory represented by Bostock has been overshadowed by H.B. 1557 and H.B. 1069.

II. Harm and Confusion Created by H.B. 1557 and H.B. 1069 

While it is too soon to know how H.B. 1557 and H.B. 1069 will impact the application of Bostock, there is cause for alarm. Under Florida law, if a parent raises a concern about compliance with H.B. 1557 and that concern is not “resolved by the school district,” the parent may proceed before a special magistrate or “[b]ring an action against the school district to obtain a declaratory judgment that the school district procedure or practice violates [H.B. 1557] and seek injunctive relief.” Fla. Stat. § 1001.42(8)(c)(7)(b). If the parent prevails in the suit, the court may offer the parent damages and shall “shall award reasonable attorney fees and court costs.” Id.

Undoubtedly, Florida’s LGBTQ teachers will face greater scrutiny and potential legal obstacles as a result of these laws. As critics have pointed out, these laws’ ambiguity and undefined terms represent a potential minefield for LGBTQ teachers. For instance, Florida law now bans instructing some students on sexual orientation. Would a gay teacher who mentions in class that he has a husband violate this law? Would a cisgender teacher with a nonbinary child be in violation if she referenced her child by their proper pronouns in front of her students? 

For transgender and nonbinary teachers, the environment is even more dangerous. H.B. 1069, which went into effect on July 1, 2023, states: “An employee or contractor of a public K–12 educational institution may not provide to a student his or her preferred personal title or pronouns if such preferred personal title or pronouns do not correspond to his or her sex,” with “sex” defined in strictly “biological” terms. Fla. Stat. § 1000.071(1), (3). It is unclear whether this language (i) forbids a transgender or gender-nonconforming teacher from providing the teacher’s own preferred pronouns to students, or (ii) forbids a teacher from providing a transgender or gender-nonconforming student’s preferred pronouns to that student—or both. Ambiguities aside, this provision is likely to force transgender and nonbinary teachers in Florida back into the closet or ban them from teaching in Florida schools altogether. If transgender and nonbinary teachers are prohibited from truthfully representing their identities in front of their students, transgender and nonbinary identities are essentially banished from the classroom entirely. 

Already, headlines have been made by teachers who have fallen on the wrong side of these new laws. For instance, the Hernando County School Board placed a fifth-grade teacher in Brooksville, Fla. under investigation for showing her class a Disney film that depicted a gay character. In another instance, an assistant principal in Polk County was told that she couldn’t pass out LGBTQ-inclusive “safe space” stickers because it violated the new legislation. Some teachers have publicly decried that the laws make their jobs nearly impossible and others have decided to quit teaching altogether. 

While these laws are new and their impact on Florida’s LGBTQ teachers and other staff is only just beginning to be understood, the socio-political movement that paved the way for this legislation has been decades in the making. In 1977, singer and political activist Anita Bryant led an anti-LGBTQ campaign in Dade County, Florida, targeting housing and employment protections for gay individuals. Bryant was particularly concerned that the ordinance would prevent gay teachers from being fired for their sexual orientation and she argued that gay teachers posed a threat to Florida’s children. Unfortunately, the campaign was a short-term success for anti-LGBTQ activists, culminating with the repeal of a nondiscrimination ordinance. Historians note that this tactic of using the protection of children to restrict LGBTQ rights was seen even before Bryant’s crusade, with the infamous Johns Committee in 1958 targeting and eliminating LGBTQ individuals from Florida schools. 

Although Bryant initially won the repeal of the ordinance, her activism spurred LGBTQ mobilization that ultimately successfully countered her bigoted efforts.

III. Lawsuits to Enjoin Enforcement 

We are aware of two recently filed cases seeking to enjoin enforcement of H.B. 1557.

First is M.A. v. Florida State Board of Education, No. 4:22CV00134 (N.D. Fla.), a case that was initiated in the U.S. District Court for the Northern District of Florida on March 31, 2022. In M.A., a group of students, parents, and teachers advanced claims arising from alleged violations of the Constitution’s Due Process and Equal Protection Clauses, the First Amendment, and Title IX of the Education Amendments of 1972. On February 15, 2023, District Judge Allen Winsor, a Trump appointee, concluded that the plaintiffs had “not alleged sufficient facts to show standing” and dismissed the case. M.A. v. Fla. State Bd. of Educ., No. 4:22-cv-134-AW-MJF, 2023 WL 2631071, at *1 (N.D. Fla. Feb. 15, 2023). In so holding, the court reasoned that the plaintiffs failed to “allege facts showing any concrete future harm that is fairly traceable to [H.B. 1557’s] enforcement and redressable by an injunction prohibiting that enforcement.” Id. at *2. On March 20, 2023, the plaintiffs appealed the case to the U.S. Court of Appeals for the Eleventh Circuit. See M.A. v. Fla. State Bd. of Educ., No. 23-10866, Dkt. 1 (11th Cir. Mar. 20, 2023). In their appellate briefing, the plaintiffs argue that the district court erred because the plaintiffs alleged sufficient facts to confer standing in the form of “three distinct injuries caused by H.B. 1557”: (i) a chilling effect on speech, (ii) denial of access to ideas and information in school, and (iii) stigma and unequal treatment in schools based on LGBT status. See M.A. v. Fla. State Bd. of Educ., No. 23-10866, Dkt. 38, at 38 (11th Cir. May 31, 2023). As of this writing, the appeal remains pending before the Eleventh Circuit.

Second is Cousins v. School Board of Orange County, Florida,6:22-CV-01312 (M.D. Fla.), which was initiated on in the U.S. District Court for the Middle District of Florida on July 25, 2022. The plaintiffs in Cousins were a group of student and parents, as well as a mission-driven non-profit called CenterLink, Inc, who advanced claims arising from alleged violations of the First Amendment and the Constitution’s Due Process and Equal Protection Clauses. On August 16, 2023, District Judge Wendy Berger, also a Trump appointee, dismissed the case for reasons similar to the reasons provided by Judge Winsor in the M.A. litigation. See Cousins v. Sch. Bd. of Orange Cnty., Fla., No. 6:22-cv-1312-WWB-LHP, Dkt. 143 (M.D. Fla. Aug. 16, 2023). As of this writing, the plaintiffs have not appealed the decision.

It remains unclear whether and to what extent these two cases will succeed in enjoining enforcement of H.B. 1557 and H.B. 1069. Settlement discussions are currently ongoing in the M.A. case, and we are cautiously optimistic that the plaintiffs in that case will be able to obtain some form of relief.

Whether through litigation, legislative repeal or some other means, Florida’s recently enacted anti-LGBT laws are harmful and should be stricken down, enjoined, or otherwise invalidated.

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