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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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U.S. Supreme Court

Supreme Court hears oral arguments in 303 Creative case

Dangerous implications for LGBTQ consumers

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U.S. Supreme Court (Washington Blade photo by Michael Key)

The U.S. Supreme Court on Monday heard oral arguments in 303 Creative v. Elenis, a case that could carry broad implications for whether and in which circumstances states may enforce certain nondiscrimination rules against purveyors of goods and services.

The case was brought by website designer Lorie Smith, who sought to include a disclaimer that her company 303 Creative would not develop wedding announcement websites for LGBTQ couples, but discovered that such a notice would violate Colorado’s anti-discrimination laws, which include sexual orientation as a protected class.

Her lawsuit against the state of Colorado, argued by counsel from the anti-LGBTQ group Alliance Defending Freedom (ADF), reaches the Supreme Court following the ruling against Smith from the 10th Circuit Court of Appeals, which created a circuit split with decisions from the 8th Circuit and Arizona Supreme Court. A ruling is expected to come in June.

The fact pattern in 303 Creative closely mirrors the 2018 case Masterpiece Cakeshop v. Colorado Civil Rights Commission, where the Supreme Court declined to rule on the broader legal questions because it found the Commission exhibited hostility toward the religious views of the bakery that refused to design a custom wedding cake for a same-sex couple.

The high court has since moved substantially to the right, with a 6-3 conservative supermajority. Colorado is one of 20 states that enforces laws prohibiting businesses from discrimination based on sexual orientation, and a ruling that would allow for broadly construed exemptions to be carved out for firms based on their First Amendment protections would carry implications well beyond the context of same-sex marriage.

Monday’s oral arguments focused on preexisting and hypothetical cases that were presented by counsel from both parties as well as by the justices, examples whose scope and fact patterns reinforced the breadth of the legal issues at play in 303 Creative.  

Colorado Solicitor General Eric Olson and U.S. Principal Deputy Solicitor General Brian Fletcher pointed to the Supreme Court’s ruling in Rumsfeld v. Forum for Academic and Institutional Rights, 2006, which found that the federal government may withhold funding from universities that, based on their objections to “Don’t Ask, Don’t Tell,” refuse to grant military recruiters access to their resources.

ADF CEO, President and General Counsel Kristen Waggoner cited the Supreme Court’s decision in Hurley v. Irish American Gay, Lesbian, and Bisexual Group of Boston, 1995, which upheld the right of private organizations to exclude participation by certain groups without interference by the state, even if that intervention by the government was for the purpose of preventing discrimination.

Much of the discussion during Monday’s oral arguments centered on what kinds of goods and services may be considered public accommodations and which constitute artistic speech or expression by the business provider. Also at issue were questions such as whether their refusal to accommodate certain events – i.e., same-sex weddings – are tantamount to refusing goods and services to members of a protected class of people under the state’s non-discrimination laws.

LGBTQ rights groups fear the implications of a ruling in favor of 303 Creative  

ADF is designated an anti-LGBTQ extremist group by the Southern Poverty Law Center. An amicus brief was filed in support of the government by the corporate law firm White & Case along with a coalition of LGBTQ rights groups and legal advocacy groups: the National LGBTQ Task Force, GLAD, the National Center for Lesbian Rights, Lambda Legal, and the Human Rights Campaign.

“Just two weeks after a shooter killed 5 people, injured 18, and traumatized so many others at Club Q in Colorado Springs, the United States Supreme Court prepares to hear oral arguments in an anti-LGBTQ public accommodations discrimination case from Colorado,” wrote the National LGBTQ Task Force in a statement addressing Monday’s oral arguments.

Liz Seaton, the group’s policy director, highlighted the importance of public accommodations laws and condemned efforts by the opposition to legalize discrimination and segregation in the marketplace. “The brief’s most important argument lifts up the powerful amicus briefs of the NAACP Legal Defense and Educational Fund and of the Lawyers’ Committee for Civil Rights Under Law,” Seaton said. “Those two briefs by venerable civil rights organizations provide a detailed history of public accommodations discrimination against Black and Brown people in this country.”

HRC’s statement on Monday touched on similar themes:

“Granting the unprecedented ‘free speech exemption’ sought by petitioners in 303 Creative v. Elenis would be a dangerous change to long standing constitutional and civil rights law. It would inevitably lead to increased discrimination not only related to LGBTQ+ people or weddings, but also for other vulnerable populations including women, people with disabilities, and people of minority faiths. It’s crucial that justices of the Supreme Court reject discrimination and affirm the equal dignity of every American.”

Likewise, the Congressional LGBTQ+ Equality Caucus released a statement exploring the broad implications that could result from the Court’s ruling on 303 Creative:

“…the Supreme Court could issue a broad ruling that not only implicates nondiscrimination laws’ applications to graphic designers but to a wide range of businesses providing goods and services that have an artistic component. A broad ruling for the graphic designer could not only provide a constitutional basis for discriminating against same-sex couples, but also for discriminating against all marginalized people currently protected by public accommodations nondiscrimination laws.”

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Congress

Jim Kolbe dies at 80

Former Ariz. congressman first openly gay Republican House member

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Rep. Jim Kolbe (R-Ariz.) speaks at a press conference on Feb. 28, 2013 for the filing of an amicus brief supporting the overturning of the Defense of Marriage Act. (Blade file photo by Michael Key)

Former Republican Congressman James (Jim) Thomas Kolbe, who represented Southern Arizona in Congress for 22 years, died Saturday of a stroke at the age of 80 his husband Hector Alfonso confirmed to Arizona media outlets.

“He belongs to so many people,” his husband said through tears on Saturday. “He gave his life for this city. He loved Tucson, he loved Arizona.”

Republican Arizona Gov. Doug Ducey ordered flags at all state buildings be lowered to half-staff until sunset Sunday in honor of the former congressman. In a series of tweets the Arizona governor lauded Kolbe’s record of public service.

Kolbe was the first openly serving gay Republican in the U.S. House of Representatives having served from 1985 to 2007.  During his 22-year tenure he served as chair of the Subcommittee on Foreign Operations, Export Financing and Related Programs of the House Appropriations Committee.

Former congressman Jim Kolbe (R-Ariz.) (Blade file photo by Michael Key)

In 1996, Kolbe held a press conference and outed himself after his vote for the Defense of Marriage Act. This, according to political journalist Jake Tapper, was owed to the fact that Kolbe was under the impression he was about to be outed by a gay publication.

Addressing a gathering of Log Cabin Republicans and other gay Republicans in 1997, he said he didn’t want to be a poster child for the gay movement.

“Being gay was not — and is not today — my defining persona,” Kolbe said during his first speech as an openly gay GOP lawmaker. He also sat on the national advisory board of the Log Cabin Republicans.

In 2013, however, Kolbe was a signatory to an amicus brief in support of overturning California’s Proposition 8.

In a private ceremony in 2013, after being together for eight years, Kolbe and Alfonso were married.

Alfonso, a Panamanian native who came to the U.S. on a Fulbright scholarship to pursue studies in special education, had been a teacher for two decades. The couple’s nuptials were held at a private event at the Cosmos Club on Massachusetts Avenue.

“Two decades ago, I could not have imagined such an event as this would be possible,” Kolbe told the Washington Blade in an interview in May 2013. “A decade ago I could not imagine that I would find someone I could be so compatible with that I would want to spend the rest of my life with that person. So, this is a very joyous day for both of us.”

The couple had to endure a year-long separation when Alfonso returned to Panama while immigration issues were being sorted out, although he was granted U.S. residency, also known as a green card.

Kolbe also battled his friend and fellow Republican, U.S. Sen. John McCain (R-Ariz.), who opposed the repeal of the Clinton-era “Don’t Ask, Don’t Tell” policy, which barred military service by gay and lesbian Americans. He repeatedly co-sponsored a bill to scrap the military’s “Don’t Ask, Don’t Tell” policy at odds with others in his party over the issue.

After he left Congress he continued to be active in Republican politics in 2012 endorsing former Massachusetts Gov. Mitt Romney in his race for the presidency against then incumbent President Barack Obama.

In an interview with the Blade at the time, Kolbe responded to the anti-gay language in the draft version of the Republican Party platform. In addition to endorsing a Federal Marriage Amendment, the platform criticized the Obama administration for dropping defense of DOMA in court and judges for “re-defining marriage” in favor of gay couples.

Kolbe predicted the 2012 Republican platform will be the last one to include such language.

“That’ll be the last time that will be in the Republican Party platform,” Kolbe said. “It won’t be there four years from now. It’s got its last gasp. I don’t believe it’ll be there four years from now; I wish it weren’t there now, but I don’t believe it will be four years from now.”

The issue over the rights of same-sex couples to marry ended with Obergefell v. Hodges, 576 U.S. 644, the landmark civil rights case in which the U.S. Supreme Court ruled that the fundamental right to marry is guaranteed to same-sex couples by both the Due Process Clause and the Equal Protection Clause of the 14th Amendment to the Constitution.

Just this week prior to his death, the Respect for Marriage Act passed the Senate by a vote of 61-36.

That legislation requires the federal government to recognize a marriage between two individuals if the marriage was valid in the state where it was performed and guarantee that valid marriages between two individuals are given full faith and credit, regardless of the couple’s sex, race, ethnicity or national origin. It is expected to pass the House again this week after which it heads to President Joe Biden for his signature.

Early in his career, Kolbe in 1976 ran for a seat in the Arizona Senate in the Tucson-Pima County district and defeated a one-term Democrat. In mid-1982, he resigned from the state Senate to run in the newly created Arizona’s 5th U.S. congressional district, but lost to Democrat Jim McNulty.

He ran again in 1984 winning the seat that he went to hold for over two decades.

According to his biography Kolbe was born in Evanston, Ill., a suburb of Chicago, but when he was five, his family moved to a ranch in rural Santa Cruz County, Arizona. It was there he attended Patagonia Elementary School and Patagonia Union High School, but graduated from the U.S. Capitol Page School in 1960 after serving for three years as a Senate Page for Arizona Republican U.S. Sen. Barry Goldwater.

He matriculated first at Northwestern University and then at Stanford University earning a master’s degree in economics. During the Vietnam era from 1965 to 1969, he served in the U.S. Navy, including a tour in Vietnam as a member of the Navy’s “Swift Boat” force. 

After military service Kolbe served as a special assistant to Republican Illinois Gov. Richard B. Ogilvie. He then moved back to Arizona settling in Tucson where he worked in business.

Accolades for the former congressman included many from Arizona political and business fields of endeavor.

“Pima County and southern Arizona could always count on Jim Kolbe,” Pima County Board of Supervisors Chair Sharon Bronson said in a statement.

Matt Gress, who was recently elected to the Arizona Legislature, called Kolbe a political pioneer.

“Today, because of Jim Kolbe, being a member of the LGBT community and serving in elected office has become irrelevant,” he said in a statement.

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District of Columbia

HHS secretary discusses federal overdose prevention efforts at Whitman-Walker

Officials held round table with clients, ‘community stakeholders’

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U.S. Health and Human Services Secretary Xavier Becerra (Public domain photo)

U.S. Department of Health and Human Services Secretary Xavier Becerra and four other high level federal health officials held a roundtable community meeting followed by a press conference at D.C.’s Whitman-Walker Health headquarters on Friday to discuss what they said were “groundbreaking” efforts to address and end the nation’s epidemic of deaths from the overdose of opioid drugs.

A statement released by HHS says Becerra and the other officials, including Dr. Rahul Gupta, director of the White House Office of National Drug Control Policy, reached out to Whitman-Walker, which, among other things, operates one of the D.C. metro area’s preeminent substance abuse treatment programs, to commemorate the one-year anniversary HHS’s Overdoes Prevention Strategy program.

“Now, one year after the release of this strategy, our nation is in a much stronger position to treat addiction and save lives,” Becerra said. “We didn’t get here by accident. Thanks to decades of work by advocates, coupled with an unparalleled people-first strategy and unprecedented investment by the Biden-Harris administration, we have made a great deal of progress,” he said.

The officials, including Gupta, pointed out that the Overdose Prevention Strategy over the past year and an updated effort launched this month have focused on greatly expanding availability of the drug overdose antidote medication naloxone.

“Deaths caused by opioids like illicit fentanyl are preventable with naloxone, and today’s announcement means more life-saving naloxone will be in communities across the country,” Gupta said. “The latest data continue to show a hopeful trend of a decreases in overdose deaths, so we must remain focused on fully implementing President Biden’s National Drug Control Strategy that will save tens of thousands of lives by expanding care for substance use disorder, making naloxone more accessible, and dismantling drug trafficking operations,” he said. 

In addition to Gupta from the White House, Becerra was joined at the community meeting and press conference by Dr. Miriam Delphin-Rittmon, assistant secretary for the Substance Abuse and Mental Health Services Administration (SAMHSA), which is an arm of HHS; Dr. Debra Houry, acting principal deputy director of the U.S. Centers for Disease Control and Prevention and Dr. Robert Califf, commissioner of the U.S. Food and Drug Administration. 

Also participating in the roundtable session and press conference was U.S. Sen. Tammy Baldwin (D-Wis.), the nation’s first out lesbian member of the Senate. 

Becerra said he invited Baldwin to participant in the day’s events, among other things, because of her record of advocacy and support for funding of federal substance abuse and overdose prevention programs. 

“One area I’ve championed in Congress is increasing access to overdose reversal medication like naloxone,” Baldwin said. “We know that when you increase access to this safe and effective treatment that you save lives,” she said. “And I’m thrilled to see the Biden administration and especially the Food and Drug Administration taking steps to increase access to naloxone.”

Califf told the gathering one of the FDA’s recently launched efforts is to work with drug manufacturers to arrange for naloxone to become an over-the-counter drug that would further expand its availability. 

From left, HHS Secretary Xavier Becerra, Dr. Rahul Gupta, Sen. Tammy Baldwin (D-Wis.), Dr. Robert Calif (at podium) and Dr. Miriam Delphin-Rittmon at Whitman-Walker Health in D.C. on Dec. 2, 2022. (Washington Blade photo by Lou Chibbaro, Jr.)

The roundtable discussion session, which included close to 50 participants, including Becerra and the other federal officials, was closed to the press, according to an HHS spokesperson, because among those participating were Whitman-Walker clients and others who receive services and support for what the officials called substance use disorder.

During the press conference that followed, Becerra spoke of how some of those participating in the roundtable discussion were part of Whitman-Walker’s success stories in helping people overcome substance use problems 

“We’re here because a year ago we decided to go in a different direction at the federal level,” he said at the press conference. “We decided that we’re not moving fast enough, we’re not moving close enough to where we need to be to try to help communities and those folks at Whitman-Walker who are trying to not just get folks into treatment but to save lives,” Becerra said. 

“And that was the great thing about the round table that we just had,” he said. “We heard about how people thrive,” he said, adding, “And one of the clients, Deborah, spoke about how she’s on the verge of getting her degree from college … That’s what we want to see … I want to thank the folks at Whitman-Walker for letting us come today to see how people can thrive and be part of that success.”

Whitman-Walker Health CEO Naseema Shafi told the Washington Blade after the press conference that Whitman-Walker has a long history of partnering with federal government agencies in addressing health issues, including Whitman-Walker’s role as a healthcare facility welcoming the LGBTQ community. 

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