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
Top 10 LGBTQ national news stories of 2025
Trump, Supreme Court mount cruel attacks against trans community
President Trump’s anti-LGBTQ agenda dominated national news in 2025, particularly his cruel attacks on trans Americans. Here are our picks for the top 10 LGBTQ news stories the Blade covered in 2025.
10. Trump grants clemency to George Santos
President Donald Trump granted clemency to disgraced former Long Island Rep. George Santos. Santos was sentenced to 87 months in federal prison after pleading guilty to wire fraud and aggravated identity theft and had served just 84 days of his more than seven-year sentence. He lied to both the DOJ and the House Ethics Committee, including about his work and education history, and committed campaign finance fraud.
9. U.S. Olympics bans trans women athletes
The United States Supreme Court decided in 2025 to take up two cases — Little v. Hecox and West Virginia v. B.P.J.— both of which concern the rights of transgender athletes to participate on sports teams. The cases challenge state laws under the Equal Protection Clause of the 14th Amendment, which prevents states from offering separate boys’ and girls’ sports teams based on biological sex determined at birth. Both cases are set to be heard in January 2026. The developments follow a decision by the United States Olympic & Paralympic Committee to change eligibility rules to prohibit transgender women from competing in women’s sporting events on behalf of the United States, following Trump’s Executive Order 14201, “Keeping Men Out of Women’s Sports.”
8. FDA approves new twice-yearly HIV prevention drug
The U.S. Food and Drug Administration on June 18 approved a newly developed HIV/AIDS prevention drug that needs to be taken only twice a year, with one injection every six months. The new drug, lenacapavir, is being sold under the brand name Yeztugo by pharmaceutical company Gilead Sciences. According to trial data, 99.9 percent of participants who received Yeztugo remained HIV negative. This emerging technology comes amid direct cuts to HIV/AIDS research measures by the Trump–Vance administration, particularly targeting international HIV efforts such as PEPFAR.
7. LGBTQ people ‘erased’ from gov’t reports
Politico reported in March that the Trump–Vance administration is slashing the State Department’s annual human rights report, cutting sections related to the rights of women, people with disabilities, the LGBTQ+ community, and more. Members of Congress objected to the removal of the subsection on “Acts of Violence, Criminalization, and Other Abuses Based on Sexual Orientation, Gender Identity or Expression, or Sex Characteristics (SOGIESC)” from the State Department’s Annual Country Reports on Human Rights Practices.
In a Sept. 9 letter to Secretary of State Marco Rubio, U.S. Reps. Robert Garcia (D-Calif.), Julie Johnson (D-Texas), and Sarah McBride (D-Del.) urged the department to restore the information or ensure it is integrated throughout each report, noting that the reports serve as key evidence for asylum seekers, attorneys, judges, and advocates assessing human rights conditions and protection claims worldwide.
6. Trump admin redefines ‘sex’ in all HHS programs
The Trump administration canceled more than $800 million in research into the health of sexual and gender minority groups. More than half of the National Institutes of Health grants scrapped through early May involved studies of cancers and viruses that disproportionately affect LGBTQ people.
The administration is also pushing to end gender-affirming care for transgender youth, according to a new proposal from the Department of Health and Human Services, NPR reported. The administration is considering blocking all Medicaid and Medicare funding for services at hospitals that provide pediatric gender-affirming care. “These rules would be a significant escalation in the Trump administration’s attack on access to transgender health care,” said Katie Keith, director of the Center for Health Policy and Law at Georgetown University.
5. FBI plans to label trans people as ‘violent extremists’
The Human Rights Campaign, Transgender Law Center, Equality Federation, GLAAD, PFLAG, and the Southern Poverty Law Center condemned reports that the FBI, in coordination with the Heritage Foundation, may be working to designate transgender people as “violent extremists.” The concerns followed a report earlier this month by independent journalist Ken Klippenstein, who cited two anonymous national security officials saying the FBI is considering treating transgender subjects as a subset of a new threat category.
That classification—originally created under the Biden administration as “Anti-Authority and Anti-Government Violent Extremists” (AGAAVE) — was first applied to Jan. 6 rioters and other right-wing extremists. Advocates said the proposal appears to stem from the false claim that the assassination of Charlie Kirk was committed by a transgender person.
4. Pentagon targets LGBTQ service members
Acting in agreement with the growing anti-LGBTQ sentiment from the Trump administration, during a televised speech to U.S. military leaders at Marine Corps Base Quantico in late September, Defense Secretary Pete Hegseth denounced past military leadership for being too “woke,” citing DEI initiatives and LGBTQ inclusion within the Department of Defense. During the 45-minute address, Hegseth criticized inclusive policies and announced forthcoming directives, saying they would ensure combat requirements “return to the highest male standard only.”
Since 2016, a Navy replenishment oiler had borne the name of gay rights icon Harvey Milk, who served in the Navy during the Korean War and was separated from service under other than honorable conditions due to his sexuality before later becoming one of the first openly LGBTQ candidates elected to public office. In June 2025, the ship was renamed USNS Oscar V. Peterson.
The U.S. Air Force also announced that transgender service members who have served between 15 and 18 years would be denied early retirement and instead separated from the military without benefits. Transgender troops will be given the option of accepting a lump-sum payout offered to junior service members or being removed from service.
In February, the Pentagon said it would draft and submit procedures to identify transgender service members and begin discharging them from the military within 30 days.
3. Trump blames Democrats, trans people for gov’t shutdown
Republicans failed to reach an agreement with Democrats and blamed them for the government shutdown, while Democrats pointed to Republicans for cutting health care tax credits, a move they said would result in millions of people paying significantly higher monthly insurance premiums next year. In the White House press briefing room, a video of Democrats discussing past government shutdowns played on a loop as the president continued to blame the Democratic Party and “woke” issues, including transgender people.
“A lot of good can come from shutdowns. We can get rid of a lot of things. They’d be Democrat things,” Trump said the night before the shutdown. “They want open borders. Men playing in women’s sports. They want transgender for everybody.”
2. Supreme Court joins attacks on LGBTQ Americans
The U.S. Supreme Court issued multiple rulings this year affecting LGBTQ people. In Mahmoud v. Taylor (6–3), it ruled that public schools must give parents advance notice and the option to opt children out of lessons on gender or sexuality that conflict with their religious beliefs. The case arose after Montgomery County, Md., schools added LGBTQ-inclusive storybooks to the elementary curriculum.
In June, the court upheld Tennessee’s ban on gender-affirming care for transgender minors, protecting similar laws in more than 20 states. Lawmakers and advocates criticized the ruling, and a coalition of seven medical associations warned it strips families of the right to direct their own health care.
The Court also allowed the Trump administration to enforce a ban on transgender military personnel and to implement a policy blocking passports with “X” gender markers, with the federal government recognizing only male and female designations.
1. Trump inaugurated for second time
President Donald Trump became the 47th president after winning Wisconsin, securing 277 of the 270 electoral votes needed. His guidebook, Project 2025, outlined the Republican Party’s goals under his new leadership, with a particular focus on opposing transgender rights.
Trump nominated openly gay hedge fund executive Scott Bessent as U.S. Treasury Secretary, a role he eventually assumed. Bessent became the highest-ranking openly gay U.S. government official in American history.
Honorable mention: The war on rainbow crosswalks escalates around the country
Florida Gov. Ron DeSantis (R) ordered state transportation officials to remove a rainbow-colored crosswalk in Orlando next to the Pulse gay nightclub, where 49 mostly LGBTQ people were killed in a 2016 mass shooting. The move follows a July 1, 2025, announcement by U.S. Transportation Secretary Sean Duffy that, with support from President Trump, the department adopted a “nationwide roadway safety initiative” that political observers say could be used to require cities and states to remove rainbow street crosswalks.
Federal Government
Holiday week brings setbacks for Trump-Vance trans agenda
Federal courts begin to deliver end-of-year responses to lawsuits involving federal transgender healthcare policy.
While many Americans took the week of Christmas to rest and relax, LGBTQ politics in the U.S. continued to shift. This week’s short recap of federal updates highlights two major blows to the Trump-Vance administration’s efforts to restrict gender-affirming care for minors.
19 states sue RFK Jr. to end gender-affirming care ban
New York Attorney General Letitia James announced on Tuesday that the NYAG’s office, along with 18 other states (and the District of Columbia), filed a lawsuit to stop U.S. Health and Human Services (HHS) Secretary Robert F. Kennedy Jr. from restricting gender-affirming care for minors.
In the press release, Attorney General James stressed that the push by the Trump-Vance administration’s crusade against the transgender community — specifically transgender youth — is a “clear overreach by the federal government” and relies on conservative and medically unvalidated practices to “punish providers who adhere to well-established, evidence-based care” that support gender-affirming care.
“At the core of this so-called declaration are real people: young people who need care, parents trying to support their children, and doctors who are simply following the best medical evidence available,” said Attorney General James. “Secretary Kennedy cannot unilaterally change medical standards by posting a document online, and no one should lose access to medically necessary health care because their federal government tried to interfere in decisions that belong in doctors’ offices. My office will always stand up for New Yorkers’ health, dignity, and right to make medical decisions free from intimidation.”
The lawsuit is a direct response to HHS’ Dec. 18 announcement that it will pursue regulatory changes that would make gender-affirming health care for transgender children more difficult, if not impossible, to access. It would also restrict federal funding for any hospital that does not comply with the directive. KFF, an independent source for health policy research, polling, and journalism, found that in 2023 federal funding covered nearly 45% of total spending on hospital care in the U.S.
The HHS directive stems directly from President Donald Trump’s Jan. 28 Executive Order, Protecting Children From Chemical and Surgical Mutilation, which formally establishes U.S. opposition to gender-affirming care and pledges to end federal funding for such treatments.
The American Medical Association, the nation’s largest and most influential physician organization, has repeatedly opposed measures like the one pushed by President Trump’s administration that restrict access to trans health care.
“The AMA supports public and private health insurance coverage for treatment of gender dysphoria and opposes the denial of health insurance based on sexual orientation or gender identity,” a statement on the AMA’s website reads. “Improving access to gender-affirming care is an important means of improving health outcomes for the transgender population.”
The lawsuit also names Oregon, Washington, California, Colorado, Connecticut, Delaware, the District of Columbia, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, New Mexico, Pennsylvania, Rhode Island, Vermont, and Wisconsin as having joined New York in the push against restricting gender-affirming care.
At the HHS news conference last Thursday, Jim O’Neill, deputy secretary of the department, asserted, “Men are men. Men can never become women. Women are women. Women can never become men.”
DOJ stopped from gaining health care records of trans youth
U.S. District Judge Cathy Bissoon blocked an attempt by the Department of Justice (DOJ) to gain “personally identifiable information about those minor transgender patients” from the University of Pittsburgh Medical Center (UPMC), saying the DOJ’s efforts “fly in the face of the Supreme Court.”
Journalist Chris Geidner originally reported the news on Dec. 25, highlighting that the Western District of Pennsylvania judge’s decision is a major blow to the Trump-Vance administration’s agenda to curtail transgender rights.
“[T]his Court joins the others in finding that the government’s demand for deeply private and personal patient information carries more than a whiff of ill intent,” Bissoon wrote in her ruling. “This is apparent from its rhetoric.”
Bissoon cited the DOJ’s “incendiary characterization” of trans youth care on the DOJ website as proof, which calls the practice politically motivated rather than medically sound and seeks to “…mutilate children in the service of a warped ideology.” This is despite the fact that a majority of gender-affirming care has nothing to do with surgery.
In United States v. Skrmetti, the Supreme Court ruled along party lines that states — namely Tennessee — have the right to pass legislation that can prohibit certain medical treatments for transgender minors, saying the law is not subject to heightened scrutiny under the Equal Protection Clause of the Fourteenth Amendment because it does not involve suspect categories like race, national origin, alienage, and religion, which would require the government to show the law serves a compelling interest and is narrowly tailored, sending decision-making power back to the states.
“The government cannot pick and choose the aspects of Skrmetti to honor, and which to ignore,” Judge Bissoon added.
The government argued unsuccessfully that the parents of the children whose records would have been made available to the DOJ “lacked standing” because the subpoena was directed at UPMC and that they did not respond in a timely manner. Bissoon rejected the timeliness argument in particular as “disingenuous.”
Bissoon, who was nominated to the bench by then-President Obama, is at least the fourth judge to reject the DOJ’s attempted intrusion into the health care of trans youth according to Geidner.
A Wider Bridge on Friday announced it will shut down at the end of the month.
The group that “mobilizes the LGBTQ community to fight antisemitism and support Israel and its LGBTQ community” in a letter to supporters said financial challenges prompted the decision.
“After 15 years of building bridges between LGBTQ communities in North America and Israel, A Wider Bridge has made the difficult decision to wind down operations as of Dec. 31, 2025,” it reads.
“This decision comes after challenging financial realities despite our best efforts to secure sustainable funding. We deeply appreciate our supporters and partners who made this work possible.”
Arthur Slepian founded A Wider Bridge in 2010.
The organization in 2016 organized a reception at the National LGBTQ Task Force’s Creating Change Conference in Chicago that was to have featured to Israeli activists. More than 200 people who protested against A Wider Bridge forced the event’s cancellation.
A Wider Bridge in 2024 urged the Capital Pride Alliance and other Pride organizers to ensure Jewish people can safely participate in their events in response to an increase in antisemitic attacks after Hamas militants attacked Israel on Oct. 7, 2023.
The Jewish Telegraphic Agency reported authorities in Vermont late last year charged Ethan Felson, who was A Wider Bridge’s then-executive director, with lewd and lascivious conduct after alleged sexual misconduct against a museum employee. Rabbi Denise Eger succeeded Felson as A Wider Bridge’s interim executive director.
A Wider Bridge in June honored U.S. Rep. Debbie Wasserman Schultz (D-Fla.) at its Pride event that took place at the Capital Jewish Museum in D.C. The event took place 15 days after a gunman killed two Israeli Embassy employees — Yaron Lischinsky and Sarah Milgrim — as they were leaving an event at the museum.
“Though we are winding down, this is not a time to back down. We recognize the deep importance of our mission and work amid attacks on Jewish people and LGBTQ people – and LGBTQ Jews at the intersection,” said A Wider Bridge in its letter. “Our board members remain committed to showing up in their individual capacities to represent queer Jews across diverse spaces — and we know our partners and supporters will continue to do the same.”
Editor’s note: Washington Blade International News Editor Michael K. Lavers traveled to Israel and Palestine with A Wider Bridge in 2016.
