Florida’s “Don’t Say Gay” Bill and Conditional Progress

By Co-Editor Prof. Jeremiah A. Ho | 何嘉霖 | 副教授

In the very first episode of Netflix’s House of Cards, when the upstart journalist Zoe Barnes, played by Kate Mara, guesses correctly that the new presidential administration’s first legislative agenda was an education bill, she succinctly reasons that it’s because “Everyone can get behind children.”

On the surface, standing behind children is the motivation behind the passage of Florida’s recent “Parental Rights in Education” Bill (House Bill 1557)—or more colloquially-dubbed, “Don’t Say Gay” Bill. As many have noted, the bill is not written clearly. Here, I’ll summarize a few key things that it tries to accomplish:

• Limits on teaching gender and sexuality in all grades
• Parental notification when children receive services covering mental, emotional, or physical health with exceptions for circumstances where school officials believe a risk of abuse, abandonment, and neglect exists
• Opt-out option that allows parents to pull their children from counseling and health service
• Legal recourse for parents if schools violate House Bill 1557

The Florida state legislature passed the bill a few weeks ago and Governor Ron DeSantis is expected to sign the bill into law. In its passage, however, genuine protection of children is not really the intent behind the bill. But it’s rather animus against LGBTQ+ people and their lived experiences, and protectionism of a discriminatory heteropatriarchal status quo.

We’ve been down this road before. Such anti-gay curriculum laws or “No Promo Homo” laws aren’t new. This is not the first time that legislatures have doubled-down on education to erase or stigmatize queer youth and identities. There’s also a likely connection here to the flurry of anti-CRT legislation that caught traction in state houses nationwide recently. Analyzing these legislations separately is probably less resonate and effective than seeing these efforts as closely-twined to one structural offense—one massive race-gender-sexuality project of our settler colonial condition: white heteropatriarchy.

The other observation I have here is the cognitive dissonance that seems to appear with this bill in an era that is supposedly more gay-friendly than ever before. But a closer scrutiny would show us that the mainstream’s “gay-friendliness” is conditional. So there is no true dissonance here. Yes, queer and trans people have some extraordinary visibility these days and enjoy some great legal recognition in their lives and relationships. Last weekend, as I showed some out-of-town friends the bohemian spectacle of Venice Beach in Southern California, we kept seeing same-sex couples holding hands as they strolled down the boardwalk—something I doubt I would have seen 20 years ago, even in blue-state California. But such progress has qualifications. One most glaring shortfall is how many of the major LGBTQ+ advancements in recent years have obtained legal recognition and protections for queer identities without more substantial normative follow-through. Professor Kathrine Franke’s criticism of Lawrence v. Texas as “domesticated liberty” comes to mind as an example. While Lawrence decriminalized same-sex intimacy, the Supreme Court’s 2003 ruling brought queer sex into a sanitized, domesticated sphere that resembled more stereotypically “conventional” heteronormative relationships. The recent 2020 Title VII decision, Bostock v. Clayton County, that brought SOGI employment protections under Title VII’s “because of sex” category is another example of what I mean. The ruling created SOGI protections simply through Justice Gorsuch’s textualist reading of “because of sex.” However, the decision lacked any frank discussions that would externalize the values of inclusiveness or would unveil the harms placed upon marginalizing queer lived experiences in the workplace. It obtained employment protections for LGBTQ+ people without discussing LGBTQ+ queer lived experiences. Bostock “didn’t say gay” in that sense. That silence in Bostock, like Lawrence’s “domesticated liberty,” serves—even if unintentionally—to preserve the norms of a heteropatriarchal status quo. Thus, queer visibility and progress are limited and conditioned on establishment terms.   

Conditional progress is why Florida’s “Don’t Say Gay” Bill and the new wedding vendor case (303 Creative LLC v. Elenis) being heard next term at the Supreme Court both appear to me as déjà vu. We’ve been down this road before (and before). Progress is on the status quo’s terms. The conversation is being controlled from there. 

A lot of critical discussion has been raised about the harms and legalities of Florida’s “Don’t Say Gay” Bill. Such harms and legalities are both funneled into the bill’s vagueness on key operative terms and how the bill would be interpreted in practice. For instance, inconsistencies with the bill’s scope between its preamble and text poses much confusion. The preamble states that the goal of the bill is to preclude “classroom discussion about sexual orientation or gender identity.” Yet, the text of the bill provides that “classroom instruction by school personnel or third parties on sexual orientation or gender identity may not occur.” Would it put a schoolteacher in a same-sex marriage in violation with the bill if he were to accidentally reveal the gender of his spouse in a classroom conversation? Ian Millhauser poses answers to this hypothetical in his article at Vox (https://www.vox.com/2022/3/15/22976868/dont-say-gay-florida-unconstitutional-ron-desantis-supreme-court-first-amendment-schools-parents). And would such vagueness pass constitutionally muster? Millhauser says not likely. But aside from these practical and legal considerations, the design of this proposed law is clear and unwavering. The bill prolongs mainstream debate about the lives of queer and trans people while simultaneously bullying, marginalizing, and silencing them. It reveals that our recent legal advancements have not gone far enough—and may never go far enough—so long as the norms of heteropatriarchy are not simultaneously challenged when these advances occur. That might be a tall order for legal strategists. But without it, we will continue to go down the same roads over and over again.