The new Florida law dubbed the “Don’t Say Gay” law by opponents is more powerful and problematic than legislators, pundits, voters and advocacy groups realize. Under the law, parents can sue over classroom instruction that depicts LGBTQ+ individuals, lifestyles or families. But other parents can sue over classroom instruction that depicts heterosexual or cisgender individuals, lifestyles or families. Simply put, all parents (and their lawyers) have a novel, powerful and chaotic weapon against Florida’s school districts.
As signed by Gov. Ron DeSantis on March 28, 2022, the law has a provision providing that (among other things) “[c]lassroom instruction by school personnel or third parties on sexual orientation or gender identity may not occur in kindergarten through grade 3.” If a parent believes the school district has a procedure or practice that violates the law — and if the school district fails to resolve the problem after a parent’s complaint — the parent may sue the school district for damages or an injunction. And if the parent wins, the court must “award reasonable attorney fees and court costs” to be paid by the school district to the suing parent.
Everyone has a sexual orientation. Everyone has a gender identity. And Florida’s law prohibits “classroom instruction” on all forms of sexual orientation or gender identity. Consequently, if books with LGBTQ+ characters are impermissible, then books with heterosexual and/or cisgender characters are impermissible. If it’s a violation to discuss that men might marry men, it’s also a violation to discuss that men might marry women. If it’s a violation to discuss a gay family, then it’s a violation to discuss a family that is not gay. If it’s a violation to discuss that a person can choose or change their sex or gender, it’s also a violation to discuss that a person has a static sex or gender. If it’s a violation for a teacher to use the “she” pronoun for a student, it is also a violation for the teacher to use the “he” pronoun for that same student.
Regardless of DeSantis’ statements, therefore, “things like transgender” are not the only topic over which a parent could sue a school district, obtain an injunction and recover attorneys’ fees. LGBTQ+ advocates also can bring lawsuits challenging the cisgender and heteronormative foundations of the current curricula. As a result, school districts and teachers cannot know what lessons remain permissible.
Nonetheless, one group is certain to benefit from this irrational law: lawyers. Parents — if they have a good faith basis to argue that a policy or practice permitted classroom instruction on sexual orientation or gender identity — can hire lawyers to file thousands of suits against Florida’s 67 school districts. When the parents win, the districts will pay the parents’ attorneys’ fees. At the same time, the school districts will have to pay defense attorneys. Unless every school district somehow removes sexual orientation and gender identity from kindergarten through grade 3 classrooms, the lawsuits — and attorneys’ fees — are inevitable.
Constantine Economides is a partner at Roche Freedman LLP, practices complex litigation, and lives in Parkland.
