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‘Don’t Say Gay’ bill vulnerable to legal challenges on many fronts: experts

First Amendment brought up as possible claim for lawsuit

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A legal challenge to the "Don't Say Gay" bill may emerge shortly after Gov. Ron DeSantis signs the measure.

With Ron DeSantis expected to sign the “Don’t Say Gay” bill any day now, legal experts are already seeing myriad ways to challenge the measure in court from multiple angles under federal law and the U.S. Constitution — and a lawsuit may emerge shortly after the Florida governor pens his name to the measure.

Legal challenges could emerge given the measure’s impact on LGBTQ students and families as well as LGBTQ teachers under the federal civil rights law on employment and education, such as Title VII of the Civil Rights Act of 1964 or Title IX of the Education Amendments of 1972. Cases could be made under the U.S. Constitution, experts say, given arguable threats to freedom of speech under the First Amendment as well as the singling out of LGBTQ families under the Equal Protection Clause in the Fourteenth Amendment.

Christopher Stoll, senior staff attorney with the National Center for Lesbian Rights, said he thinks “it’s almost certain that the bill will be challenged if it becomes law” and in terms of timing, pro-LGBTQ legal groups “are certainly prepared to do that if the bill is signed.”

“I think it raises a number of issues, but the primary ones are Equal Protection and First Amendment,” Stoll said. “This bill singles out LGBTQ families as being so shameful that they need to be excluded from the classroom in a way that other families are not, and that has an obvious discriminatory effect on children, same-sex couples, and other LGBTQ families.”

Other pro-LGBTQ groups that have brought legal challenges to anti-LGBTQ measures in the courts are holding their cards close to their vest on potential lawsuits against the “Don’t Say Gay” bill. The American Civil Liberties Union and Lambda Legal didn’t respond to a request to comment.

Key portions of the “Don’t Say Gay” bill, titled HB 1557, reveal the potential penalty for the slightest hint of talk about LGBTQ kids and families in schools, therefore the potential for challenging the measure in court as a discriminatory law. The possibilities for legal challenges could be seen as a warning to DeSantis signing the “Don’t Say Gay” bill into law would come at great expense to the state if it were to defend the law in court, not to mention the provision of the bill that allows families to sue if they feel the school their children attends engaged in instruction of LGBTQ issues in contravention of the measure.

Under the legislation, schools for children in kindergarten through grade 3 may not engage in “instruction” about sexual orientation and gender identity, or generally throughout the education system “in a manner that is not age-appropriate or developmentally appropriate for students.” Although the legislation allows for internal review and resolution if a parent brings a complaint against the school for violating the measure, the “Don’t Say Gay” bill also empowers a parent of a student who feels the law was violated to “bring an action against a school district” in court to seek damages.

Proponents of the bill downplay it as a parental rights measure aimed at preventing K-3 students from being taught sex education or teachers engaging in critical general theory writ-large in the Florida school system, but the measure contains no limiting principle restricting its impact to those concepts. In fact, Republican lawmakers at an earlier stage in the legislative process rejected an amendment proposed by a Democrat that would redefine the prohibition under the measure to “sexual activity.”

David Flugman, a lawyer at the New York-based Selendy Gay Elsberg PLLC whose practice includes LGBTQ rights, said restrictions of the measure on speech in schools make the protections under the First Amendment a possible choice for “a serious challenge” to the “Don’t Say Gay” measure.

“I do think that there are First Amendment grounds to challenge this on from the perspective of teachers,” Flugman said. “The state has a pretty strong interest in what’s taught in schools and what ages. Now, usually that goes through the Department of Education or something like that as opposed to the legislature doing it this way. But the fact that you’re basically barring an entire topic of conversations, that on its face seems like it’s content-based speech regulations, which is usually subject to strict scrutiny under First Amendment law.”

Although the question of standing might be an issue if no action has been brought against a particular teacher, Flugman said he could imaging other entities, including a teacher’s union, to represent teachers on their behalf.

But not all experts agree a First Amendment challenge is the way to go for a lawsuit against the “Don’t Say Gay” measure in court given the expected state role in managing the curriculum and standards of its schools.

Dale Carpenter, a conservative law professor at the Southern Methodist University Dedman School of Law who’s written in favor of LGBTQ rights, said the language in the bill on “instruction” is guiding curriculum, which is “ordinarily within the authority of the state” and therefore not grounds for a First Amendment challenge.

“It should not be applied to offhand discussion or conversation or acknowledgement of students’ same-sex parents or something like that,” Carpenter said. “So to the extent that is what the bill is doing, there’s not a really good basis for challenging that part of the bill under the First Amendment.”

Carpenter, however, conceded a First Amendment challenge may be possible under the bill’s provision that more generally prohibits schools from engaging in LGBTQ issues in ways that are “not age-appropriate.”

“That part of the bill might be challenged on vagueness grounds under the First Amendment because the fear would be, since nothing is spelled out about this age appropriate or development appropriate language, your expression might be chilled in the classroom, might deter people from even speaking in a way that would be protected,” Carpenter said. “So that’s a possible challenge. I don’t know that it’s very strong, but it’s a possible challenge.”

Carpenter added another possible First Amendment challenge to the bill may be possible if a particular Florida school were to interpret the language to include not just instruction, but offhand conversation. A disciplined teacher, Carpenter said, could bring a lawsuit against the measure on First Amendment grounds because the law would have been “applied in a way that was overly broad.”

Legal experts also point to the U.S. Supreme Court’s decision in 2020 in Bostock v. Clayton County, which determined anti-LGBTQ discrimination is a form of sex discrimination, thus illegal under federal civli rights law, as fertile ground to challenge the “Don’t Say Gay” measure.

Flugman said he could “definitely see” a clear-cut case based on Title VII against the “Don’t Say Gay” measure from LGBTQ teachers in Florida who feel the need to keep quiet about their sexual orientation or gender identity.

“Title VII is pretty broad in that; it’s not just hiring or firing, but it’s the terms of employment and how someone is treated at work and the benefits and all of that,” Flugman said. “And so, you know, if someone is basically being forced to hide their identity in a school in Florida as a result of this bill, I think that you absolutely could see a claim under Title VII against the school district for that.”

The Biden administration already weighed in on the legality of the bill via the Department of Education by suggesting the “Don’t Say Gay” would contravene Title IX, which bars discrimination on the basis of sex in education, thus could jeopardize the state’s federal funding for its schools.

Secretary of Education Miguel Cardona issued the warning to Florida in a statement after the Florida Legislature gave its final approval to the measure, which he called “hateful” and a distraction from issues such as recovery from the coronavirus pandemic.

“The Department of Education has made clear that all schools receiving federal funding must follow federal civil rights law, including Title IX’s protections against discrimination based on sexual orientation and gender identity,” Cardona said. “We stand with our LGBTQ+ students in Florida and across the country, and urge Florida leaders to make sure all their students are protected and supported.”

Stoll said he has “not spoken with anyone at the government” regarding potential penalties from the Biden administration for Florida under the “Don’t Say Gay” bill, but supports efforts from the standpoint of civil rights laws in the wake of the Bostock ruling.

“I certainly agree that you know, because federal anti-discrimination laws have now been interpreted by the Supreme Court to protect LGBTQ people that any discriminatory measure like this bill certainly is potentially vulnerable to consequences under Title IX or Title VII or other other federal anti-discrimination laws,” Stoll said.

But the wide-ranging possible impact of the law on LGBTQ students, families, and teachers as well as the potential impact on the Florida education system by empowering parents to sue the school their child attends if they feel it violated the “Don’t Say Gay” bill’s provisions make possibilities for legal challenges to the measure virtually endless.

Carpenter, asked by the Blade about the provision in the bill allowing parents to sue in a way that is different from managing other curriculum standards in Florida, envisioned a legal challenge to the “Don’t Say Gay” bill not unlike a challenge to the anti-abortion law Senate Bill 8 in Texas.

“I think once a parent brings some kind of action, and if the school tries to restrict the teacher’s speaking, then the teacher can launch a challenge to the heart of the bill,” Carpenter said. “The concern is these parents are going to bring some kind of action anytime “gay” is mentioned in the classroom, even though it’s not a curriculum matter. That’s the concern, and if school started enforcing it that way, then the defense could be brought to say, ‘Hey, that’s not something that’s within the curricular determinations of the state.'”

Flugman said he could see a lawsuit against the “Don’t Say Gay” measure based on a right to education similar to a case his team litigated in the Sixth Circuit, although he conceded he doesn’t know the case law is developed within the 11th Circuit, which has jurisdiction over Florida.

“The case in the Sixth Circuit came up in the context of race discrimination in certain Michigan schools in Detroit,” Flugman said. “But could you make an argument like along those lines? It’s a lot more inchoate. There’s not a firmly established right there, a creative plaintiff could frame the claim there as well and try and get some traction.”

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Federal Government

RFK Jr.’s HHS report pushes therapy, not medical interventions, for trans youth

‘Discredited junk science’ — GLAAD

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HHS Secretary Robert F. Kennedy Jr. (Washington Blade photo by Michael Key)

A 409-page report released Thursday by the U.S. Department of Health and Human Services challenges the ethics of medical interventions for youth experiencing gender dysphoria, the treatments that are often collectively called gender-affirming care, instead advocating for psychotherapy alone.

The document comes in response to President Donald Trump’s executive order barring the federal government from supporting gender transitions for anyone younger than 19.

“Our duty is to protect our nation’s children — not expose them to unproven and irreversible medical interventions,” National Institutes of Health Director Dr. Jay Bhattacharya said in a statement. “We must follow the gold standard of science, not activist agendas.”

While the report does not constitute clinical guidance, its findings nevertheless conflict with not just the recommendations of LGBTQ advocacy groups but also those issued by organizations with relevant expertise in science and medicine.

The American Medical Association, for instance, notes that “empirical evidence has demonstrated that trans and non-binary gender identities are normal variations of human identity and expression.”

Gender-affirming care for transgender youth under standards widely used in the U.S. includes supportive talk therapy along with — in some but not all cases — puberty blockers or hormone treatment.

“The suggestion that someone’s authentic self and who they are can be ‘changed’ is discredited junk science,” GLAAD President and CEO Sarah Kate Ellis said in a statement. “This so-called guidance is grossly misleading and in direct contrast to the recommendation of every leading health authority in the world. This report amounts to nothing more than forcing the same discredited idea of conversion therapy that ripped families apart and harmed gay, lesbian, and bisexual young people for decades.”

GLAAD further notes that the “government has not released the names of those involved in consulting or authoring this report.”

Janelle Perez, executive director of LPAC, said, “For decades, every major medical association–including the American Medical Association and the American Academy of Pediatrics–have affirmed that medical care is the only safe and effective treatment for transgender youth experiencing gender dysphoria.

“This report is simply promoting conversion therapy by a different name – and the American people know better. We know that conversion therapy isn’t actually therapy – it isolates and harms kids, scapegoats parents, and divides families through blame and rejection. These tactics have been used against gay kids for decades, and now the same people want to use them against transgender youth and their families.

“The end result here will be a devastating denial of essential health care for transgender youth, replaced by a dangerous practice that every major U.S. medical and mental health association agree promotes anxiety, depression, and increased risk of suicidal thoughts and attempts.

“Like being gay or lesbian, being transgender is not a choice, and no amount of pressure can force someone to change who they are. We also know that 98% of people who receive transition-related health care continue to receive that health care throughout their lifetime. Trans health care is health care.”

“Today’s report seeks to erase decades of research and learning, replacing it with propaganda. The claims in today’s report would rip health care away from kids and take decision-making out of the hands of parents,” said Shannon Minter, legal director of NCLR. “It promotes the same kind of conversion therapy long used to shame LGBTQ+ people into hating themselves for being unable to change something they can’t change.”

“Like being gay or lesbian, being transgender is not a choice—it’s rooted in biology and genetics,” Minter said. “No amount or talk or pressure will change that.” 

Human Rights Campaign Chief of Staff Jay Brown released a statement: “Trans people are who we are. We’re born this way. And we deserve to live our best lives and have a fair shot and equal opportunity at living a good life.

“This report misrepresents the science that has led all mainstream American medical and mental health professionals to declare healthcare for transgender youth to be best practice and instead follows a script predetermined not by experts but by Sec. Kennedy and anti-equality politicians.”




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The White House

Trump nominates Mike Waltz to become next UN ambassador

Former Fla. congressman had been national security advisor

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U.N. headquarters in New York (Washington Blade photo by Michael K. Lavers)

President Donald Trump on Thursday announced he will nominate Mike Waltz to become the next U.S. ambassador to the U.N.

Waltz, a former Florida congressman, had been the national security advisor.

Trump announced the nomination amid reports that Waltz and his deputy, Alex Wong, were going to leave the administration after Waltz in March added a journalist to a Signal chat in which he, Defense Secretary Pete Hegseth, and other officials discussed plans to attack Houthi rebels in Yemen.

“I am pleased to announce that I will be nominating Mike Waltz to be the next United States ambassador to the United Nations,” said Trump in a Truth Social post that announced Waltz’s nomination. “From his time in uniform on the battlefield, in Congress and, as my National Security Advisor, Mike Waltz has worked hard to put our nation’s Interests first. I know he will do the same in his new role.”

Trump said Secretary of State Marco Rubio will serve as interim national security advisor, “while continuing his strong leadership at the State Department.”

“Together, we will continue to fight tirelessly to make America, and the world, safe again,” said Trump.

Trump shortly after his election nominated U.S. Rep. Elise Stefanik (R-N.Y.) to become the next U.S. ambassador to the U.N. Trump in March withdrew her nomination in order to ensure Republicans maintained their narrow majority in the U.S. House of Representatives.

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U.S. Federal Courts

Second federal lawsuit filed against White House passport policy

Two of seven plaintiffs live in Md.

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Lambda Legal on April 25 filed a federal lawsuit on behalf of seven transgender and nonbinary people who are challenging the Trump-Vance administration’s passport policy.

The lawsuit, which Lambda Legal filed in U.S. District Court for the District of Maryland in Baltimore, alleges the policy that bans the State Department from issuing passports with “X” gender markers “has caused and is causing grave and immediate harm to transgender people like plaintiffs, in violation of their constitutional rights to equal protection.”

Two of the seven plaintiffs — Jill Tran and Peter Poe — live in Maryland. The State Department, Secretary of State Marco Rubio, and the federal government are defendants.

“The discriminatory passport policy exposes transgender U.S. citizens to harassment, abuse, and discrimination, in some cases endangering them abroad or preventing them from traveling, by forcing them to use identification documents that share private information against their wishes,” said Lambda Legal in a press release.

Zander Schlacter, a New York-based textile artist and designer, is the lead plaintiff.

The lawsuit notes he legally changed his name and gender in New York.

Schlacter less than a week before President Donald Trump’s inauguration “sent an expedited application to update his legal name on his passport, using form DS-5504.”

Trump once he took office signed an executive order that banned the State Department from issuing passports with “X” gender markers. The lawsuit notes Schlacter received his new passport in February.

“The passport has his correct legal name, but now has an incorrect sex marker of ‘F’ or ‘female,'” notes the lawsuit. “Mr. Schlacter also received a letter from the State Department notifying him that ‘the date of birth, place of birth, name, or sex was corrected on your passport application,’ with ‘sex’ circled in red. The stated reason was ‘to correct your information to show your biological sex at birth.'”

“I, like many transgender people, experience fear of harassment or violence when moving through public spaces, especially where a photo ID is required,” said Schlacter in the press release that announced the lawsuit. “My safety is further at risk because of my inaccurate passport. I am unwilling to subject myself and my family to the threat of harassment and discrimination at the hands of border officials or anyone who views my passport.”

Former Secretary of State Antony Blinken in June 2021 announced the State Department would begin to issue gender-neutral passports and documents for American citizens who were born overseas.

Dana Zzyym, an intersex U.S. Navy veteran who identifies as nonbinary, in 2015 filed a federal lawsuit against the State Department after it denied their application for a passport with an “X” gender marker. Zzyym in October 2021 received the first gender-neutral American passport.

Lambda Legal represented Zzyym.

The State Department policy took effect on April 11, 2022.

Trump signed his executive order shortly after he took office in January. Germany, Denmark, Finland, and the Netherlands are among the countries that have issued travel advisories for trans and nonbinary people who plan to visit the U.S.

A federal judge in Boston earlier this month issued a preliminary injunction against the executive order.  The American Civil Liberties Union filed the lawsuit on behalf of seven trans and nonbinary people.

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