National
‘Don’t Say Gay’ bill vulnerable to legal challenges on many fronts: experts
First Amendment brought up as possible claim for lawsuit
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.”
National
Multi-billion-dollar 9/11 Victim Compensation Fund to continue until 2090
Eligibility for same-sex partner survivors remains unclear
As part of its commemoration of the 25th anniversary of the 9/11 terrorist attacks, the September 11th Victim Compensation Fund, a federally operated program, released information during the past week showing it has awarded more than $18 billion to over 77,000 9/11 victims and their families since 2011.
Officials with what’s now referred to as the VCF point out that it was created to provide compensation to individuals or to a court-approved personal representative of a deceased individual who were present at one of the three sites where the hijacked jetliners crashed.
Among those supported under the program are thousands of rescue workers, clean-up crews, and residents living near the World Trade Center Twin Towers destruction site who became ill, many of whom later died, by being exposed to the toxic fumes created by the fire and falling debris.
“Twenty-five years since that day, the September 11th Victim Compensation Fund has served tens of thousands of victims and their families, and we continue to receive over 750 new claims each month — a clear indication of the ongoing importance of our mission,” said Allison Turkel, VCF’s leader, who holds the title of Special Master.
In a Sept. 2 briefing for the news media in advance of the 9/11 anniversary commemoration, Turkel pointed out that the VCF operation was upgraded and expanded by separate laws passed by Congress in 2011 and 2019, with the 2019 law signed by President Trump providing full funding to “pay all eligible claims and extended the filing deadline to Oct. 1, 2090.”
LGBTQ advocacy organizations in New York and nationwide have reported that during the time shortly after the 9/11 attacks same-sex surviving partners of 9/11 victims learned they were ineligible for compensation benefits because their same-sex relationships were not legally recognized.
Nicole Nava, a VCF spokesperson, told the Washington Blade she would inquire into whether same-sex couple surviving partners were being supported under the VCF program in more recent years.
She said under long established VCF procedures, all applicants for benefit claims regarding a deceased person, whether same-sex or opposite sex, must be appointed as a Personal Representative of the deceased person by a state court. For D.C. residents, the probate division of the D.C. Superior Court appoints a Personal Representative.
“Claims for deceased victims (regardless of the cause of death) may be submitted only by the Personal Representative,” a statement on the VCF website says. “Each state has laws that define the process for appointment of the Personal Representative and the specific authority granted to that Personal Representative,” it says.
The Washington Blade couldn’t immediately determine the criteria for being approved as a Personal Representative by the D.C. Superior Court and various state courts, including whether a same-sex survivor partner would be eligible for such an appointment.
A spokesperson for the District of Columbia LGBTQ+ Bar Association, which includes many local attorneys who specialize in a wide range of specialized legal issues, couldn’t immediately be reached to find out if one or more of their members might be able to determine the same-sex partner eligibility for Personal Representative status.
In her news media briefing, VCF Special Master Turkel said detailed information about how best to file a claim for 9/11 victim compensation is available on the VCF website.
“Twenty-five years since the events of September 11th , 2001, we know it has become increasingly challenging for claimants to find documents needed to prove their presence at an eligible location, which is one of the key requirements to be eligible for compensation,” she said.
She was referring to the requirement that 9/11 surviving victims seeking a claim for support for injuries or illnesses related to the 9/11 attacks must prove they were present at the World Trade Center site, the Pentagon site, or the Shanksville, Pa. site where the hijacked jetliners crashed. Those requirements are separate from the less clearly defined criteria for same-sex couple victim survivor eligibility.
“Our team is committed to ensuring no claimant feels lost or overwhelmed when submitting a claim,” Turkel said at the briefing. “We have a great helpline with real live people who can answer or refer any questions that come in,” she added. “They engage in over 4,000 calls a month on average. We encourage folks to call 1-855-1555 with any questions.”
The VCF website, which has additional detailed information, can be accessed at www.vcf.gov.
National
Remembering the LGBTQ heroes of 9/11 terrorist attacks
25 years later, ‘the heartbreak remains strong’
Many in the LGBTQ community in the D.C. area and throughout the country were expected to join friends, co-workers, and family members this week in commemorating the 25th anniversary of the Sept. 11, 2001, terrorist attacks on the New York World Trade Center’s Twin Towers and on the Pentagon just outside D.C. as well as the jetliner hijacking that ended in a fatal crash in an open field in Shanksville, Pa.
A total of 2,996 people died in the 9/11 attacks, including 19 terrorists who hijacked four jetliners whose passengers included Americans and citizens of many other countries.
Activists involved with local and national LGBTQ advocacy organizations recall witnessing a coming together of LGBTQ people and their co-workers, neighbors, and family members to support one another during a time of unimaginable horror and grief.
Among those who lost their lives in the 9/11 terrorist attacks was American Airlines co-pilot David Charlebois, an out gay man and member of the Gay Pilots Association, who was on American Airlines Flight 77, which the terrorists crashed into the Pentagon.
Also among the terrorist victims in the 9/11 attacks was gay public relations executive and rugby enthusiast Mark Bingham of San Francisco, who was among several passengers of the hijacked United Airlines jet who reportedly stormed the cockpit to regain control of the jetliner before one of the hijackers crashed the jet into the countryside in rural Pennsylvania.
The jet had taken off from Newark, N.J. with its destination being San Francisco. Investigators learned the hijackers turned the plane around and were heading to Washington, D.C., with plans to crash it into the White House or the U.S. Capitol.
The passengers, including Bingham, who stormed the cockpit and were among the 44 passengers and crew who lost their lives in the crash are credited by investigators and family members and friends with saving the lives of hundreds of others if the hijackers succeeded in crashing into the White House or Capitol.
Among the other LGBTQ people known to have lost their lives in the 9/11 attacks was Father Mychal Judge, 68, a gay Franciscan priest who served as a Catholic chaplain for the New York City Fire Department. According to the National Catholic Reporter, Judge rushed to the scene of the World Trade Center shortly before the Twin Towers collapsed. He was fatally struck by debris falling from the south tower while giving last rites to a fallen firefighter, the Catholic publication reported.
“He was a decent, wonderful human being,” said New York gay journalist Andy Humm, who had interviewed Judge for LGBTQ-related stories prior to the 9/11 attacks. “I saw him at many demonstrations for gay and AIDS causes, showing up in his Franciscan monk’s cassock,” Humm told the Washington Blade five years ago at the time of the 9/11 20th anniversary. “And he was equally beloved by the fire department, there at every major fire tragedy in the city, lending moral support to firefighters,” Humm said.
Francis DeBernardo, executive director of New Ways Ministries, a Maryland-based LGBTQ Catholic group that advocates for LGBTQ supportive policies within the church, reported five years ago that his group was supporting an effort to call on the Catholic Church to officially recognize Fr. Judge as a saint by canonizing him. But DeBernardo told the Blade this week that those efforts failed to obtain the needed support from various Catholic entities, including the Franciscan Order of Friars Minors, of which Judge was affiliated, ending efforts to canonize Judge as a saint.
DeBernardo has written a book about Judge’s life and legacy published in 2023 called “Mychal Judge:Take Me Where You Want Me to Go.”
Among the other widely reported LGBTQ victims of the 9/11 terrorist attacks were a gay couple from California, Daniel Brandhorst and Ronald Gamboa, and their adopted son, David, who were among those who died aboard the United Airlines flight that crashed in Pennsylvania. The Los Angeles Times reported that Brandhorst, an attorney, and Gamboa, the manager of a Santa Monica Gap store, had adopted three-year-old David when he was an infant.
For many LGBTQ residents of New York and the D.C. area, the suffering over the loss of loved ones, including same-sex partners, was heightened a short time later when they learned they were initially ineligible for local and federal programs aimed at providing financial assistance to survivors of the 9/11 attack victims because same-sex couples were not legally recognized.
At the urging of LGBTQ rights organizations, state and local officials in the New York and the D.C. area took steps to address the initial denial of financial support for surviving same-sex partners In programs under their control. Officials with a massive federal aid program for 9/11 survivors, however, said they did not have legal authority to authorize payments to same-sex partners.
The officials, in the administration of then-President George W. Bush, said the best they could do would be to leave it up to local authorities to determine whether state probate laws would recognize a same-sex partner as a family member for eligibility in the federal aid program for 9/11 survivors, many of whom lived in states outside the New York and D.C. area.
Nicole Nava, a spokesperson for the September 11th Victim Compensation Fund, a federally funded program established to compensate for physical harm or death caused by the 9/11 terrorist attacks, including support for surviving family members, said she would inquire into whether same-sex surviving partners were being supported under that program in subsequent years in response to a request from the Washington Blade.
Jenny Pizer, an attorney for the LGBTQ litigation group Lambda Legal, which supported LGBTQ partner survivors of victims of the 9/11 attacks, said the information she and her organization had showed that many if not most of the LGBTQ partner survivors were unable to obtain the federal Victim Compensation Fund payment benefits that married heterosexual spouses obtained. She said she didn’t have a definitive answer on whether some LGBTQ surviving partners were compensated.
However, at least one case where an LGBTQ partner was compensated was reported by the Washington Post in a Jan. 22, 2003, news story about Peggy Neff, the lesbian partner of 18 years of Sheila Hein, 51, a civilian employee at the Pentagon, who was killed when the terrorist hijacked jetliner crashed into the Pentagon.
The Post reported that the Sept. 11 Victim Compensation Fund, under the leadership of its director, Kenneth Feinberg, approved an award of $557,390 for Neff in compensation for the loss of her partner. The Post story quoted a spokesperson for the Human Rights Campaign as saying, “It is our sincere hope that this signals that other gay families who have suffered the loss of a loved one will be treated similarly.”
The compensation program, which is operated by the U.S. Department of Justice, remains in operation until 2090. The Blade will report on any additional similar awards for LGBTQ surviving partners if Nava provides such information.
Events commemorating the 25th anniversary of the 9/11 attacks were scheduled to take place this week at memorial sites honoring the 9/11 victims located outside the Pentagon in Arlington, Va., at the site of the World Trade Center Twin Towers in New York City, and the site of the jetliner crash in Shanksville, Pa., which is operated by the U.S. National Park Service.
The U.S. Congress in 2017 and 2021 approved separate bills signed by President Donald Trump during his first term in office and President Joe Biden creating the Global War on Terrorism Memorial and its construction, to be built on the National Mall in Washington, D.C. that’s scheduled to be completed in 2028.
The memorial, to be located near the Lincoln Memorial and Vietnam Veterans Memorial close to 23rd Street and Constitution Avenue, N.W., is intended to honor people who served and were lost in the wars and counterterrorism operations that followed the 9/11 attacks, including U.S. military operations in Iraq and Afghanistan.
Longtime LGBTQ rights advocate Jay Fisette, who at the time of the 9/11 attacks held the elected position of chair of the Arlington County Board, which serves as the county’s governing body, was among the Arlington officials that came to the Pentagon’s grounds in Arlington to oversee efforts by firefighters to rescue Pentagon workers on the day of the attack.
At an Oct. 7, 2001, 9/11 Day of Remembrance and Appreciation ceremony held in Arlington, Fisette expressed the views of many in the community in response to the 9/11 attacks.
“Tonight, our community gather as a family,” he told the gathering. “We gather in sorrow and in disbelief, in remembrance and appreciation,” he said. “But we come here, too, with resolve and pride. We come together as Arlingtonians who love our country, as Americans who love our country,” he said.
“Our enemies may hurt our bodies and destroy our buildings, but they will never defeat our determination to make this a world of peace and a community in which our children grow up safe and secure,” Fissette said.
Although some of the same-sex partners of those killed in the 9/11 attacks faced obstacles in obtaining financial support through the federal 9/11 relief program, Tom Hay, the surviving partner of 14 years of American Airlines pilot David Charlebois was treated with respect and honor by American Airlines officials and colleagues at Charlebois’s funeral mass at D.C.’s St. Matthew Cathedral.
More than a dozen uniformed company pilots and flight attendants attended the mass. And a press release issued by American Airlines mentioned Charlebois’s relationship with Hay and told how Hay stood with Charlebois when Charlebois advocated for equal rights for LGBTQ people in the airline industry through his involvement with the National Gay Pilots Association.
“David was an early member of the NGPA,” the American Airlines statement said. “His contribution helped ensure ongoing progress toward fairness and solidarity.”
Activists in New York have said the 9/11 attacks drew attention to the need for legal protections for same-sex couples, including the need for recognition of same-sex marriage, which the U.S. Supreme Court legalized nationwide in its landmark ruling in 2015.
But LGBTQ advocates in New York pointed to the difficulties LGBTQ surviving partners faced when desperately seeking to find out if a partner had survived at the site of the World Trade Center attack where the Red Cross and other emergency relief agencies set up a station near the site of the attack.
“Literally, gay people had to go there, turn around, go back home, and get some paperwork that spouses didn’t have to get to prove a relationship existed,” said Ross Levi, who at the time served as executive director of the New York LGBTQ advocacy group Empire State Pride Agenda.
“You were nervous and scared and sad and then you had to go through that,” Levi told the Blade in 2011 at the time of the 10-year anniversary of the 9/11 attacks. “And worse yet, other people turned them away, even with the paperwork, saying sorry you’re not a family according to our guidelines.”
Activists said New York City and New York State officials quickly recognized the inequities faced by same-sex partner survivors and took steps to change polices and laws to correct the situation. Among other things, New York’s then-Gov. George Pataki (R) issued an executive order in October 2001 that included surviving partners of gay and lesbian victims of the World Trade Center attacks in receiving full spousal benefits from the state’s Crime Victims Board.
In a separate development, the LGBTQ litigation group Lambda Legal, ESPA, the Human Rights Campaign, and other LGBTQ advocacy groups created the September 11 Gay & Lesbian Family Fund to provide some support to surviving same-sex partners who were ineligible for help from the federal relief fund program.
“The terrorist attack on September 11th is a tragedy that touched every American, impacting people and families from all walks of life,” Jonathan Lovitz, the Human Rights Campaign’s Senior Vice President for Campaigns and Communications told the Blade in a statement this week.
“As in all moments in American history, LGBTQ+ Americans were there, and feel the impact of this day,” he said. “As we remember the lives lost 25 years later, the heartbreak remains strong and the work to ensure that every person can live safe from violence in this country continues.”
2026 Midterm Elections
Chris Pappas wins NH Democratic Senate primary
Gay congressman running to succeed retiring U.S. Sen. Jeanne Shaheen
New Hampshire Congressman Chris Pappas on Tuesday won the Democratic primary in the race to succeed retiring U.S. Sen. Jeanne Shaheen (D-N.H.) in the U.S. Senate.
Pappas defeated Karishma Manzur, who was his primary challenger, by a 61.8-36.1 percent margin.
The gay congressman will face off against former U.S. Sen. John E. Sununu, who defeated former U.S. Sen. Scott Brown in the Republican primary.
“Tonight’s victory sends a clear message that voters are looking for leaders who will fight for their rights, their freedoms, and to be treated with dignity and respect,” said Human Rights Campaign President Kelley Robinson in a statement.
She campaigned for Pappas in Manchester, New Hampshire’s largest city, on Aug. 30.
“Chris Pappas has delivered results, stood up for equality, and showed up for the people he serves,” said Robinson in her statement. “HRC was proud to mobilize Equality Voters across New Hampshire to help power this win. We don’t have a second to waste between now and November. We look forward to continuing our work with Rep. Pappas as he drives toward victory in November so he can help return a pro-equality majority to the United States Senate.”
A poll the University of New Hampshire Survey Center released on Aug. 26 showed Sununu ahead of Pappas by a 45-43 percent margin if they were to face off in the general election. The margin of error is +/-2.1 percent.
Pappas would become the first openly gay man elected to the U.S. Senate if he were to win in November.
Gay man sues Delaware AG for not prosecuting partner in domestic violence case
Virginia Anti-Violence Project struggles to fill federal funding gaps
Advocate, Out parent company adds Trump supporter to board, prompting outrage
78th annual Emmy Awards recapped
