‘Don’t Say Gay’ Lawsuit Plaintiffs Speak Out
LKimberly Feinberg is a close friend of ourdes Casares. They have been together more than 17 years. After they wed in 2016 when same-sex marriage became legal in Florida, they thought they would be guaranteed all the “rights and privileges” that come with it, Casares says, including having their child be protected and treated equally under the law.
So they have been alarmed, Casares says, to watch the swift advancement of Florida House Bill 1557—called the “Parental Rights in Education Act” by supporters and the “Don’t Say Gay” law by critics—through the Florida legislature. Republican Governor Ron DeSantis signed the bill into law on March 28, and it’s set to go into effect July 1. The new law bars any “classroom instruction” on sexual orientation or gender identity in public school grades kindergarten through third grade—the age range of their child, who attends a public elementary school in Miami-Dade County. Due to privacy concerns, Casares and Feinberg are not disclosing the names, age and gender of their children.
It is still being debated about the impact of this new law. Supporters say the law’s intention is to keep parents more involved in the education of their children. However, opponents claim it might ban teachers who encourage children of the same sex to speak about their families and make those students and LGBTQ students feel marginalized and isolated. “It’s billed as a parental rights legislation [but] it’s not for all parents equally,” says Feinberg, 46. “We lose the ability to protect our child, to have [our child] included in the same way as before,” Casares, 53, adds.
Casares, Feinberg and others are plaintiffs in a suit filed Thursday morning against the law. They claim that the legislation breaches the Constitution. They are joined by others including two additional same-sex couples with young children, a trans fifth grader, two LGBTQ high school students, a mother of a child who has expressed “no specific” gender identity, and a middle school English teacher. They are represented by the public interest law firm the National Center for Lesbian Rights (NCLR) and the law firm Kaplan Hecker & Fink, and joined by LGBTQ advocacy groups Equality Florida and Family Equality as organizational plaintiffs.
Lourdes Casares & Kimberly Feinberg
DeSantis is being sued in federal court to prevent the law from going into effect. The lawsuit also names DeSantis and the Florida State Board of Education commissioner.
The Governor’s office tells TIME it cannot comment on the specifics of this or any other pending lawsuits. But the office said in a statement that the “law is designed to protect the right of a parent to know about and direct conversations about gender and sexuality with their children, and it is designed to protect young children in kindergarten through third grade from inappropriate content.”
“This law does not single out any particular group, orientation, or identity. The law does not ban student-initiated discussion. We are confident it is legal to protect young children and parental rights,” the statement continues.
Miami-Dade County Public Schools says that while the district cannot comment on the litigation, it is “committed to supporting and promoting an inclusive educational environment.”
The Board of Education and its commissioner did not respond to TIME’s request for comment.
The lawsuit is the first major legal challenge to Florida’s controversial law. Given the increasing political attention to LGBTQ rights, and the increased scrutiny on what is taught in U.S schools, the fate of this legislation may prove to be a key issue in swing voting in the midterms. And in the meantime, students and parents like Casares and Feinberg—speaking to TIME in their first interview about the lawsuit—are left in limbo as they face an uncertain future about whether their family and identity will be deemed inappropriate for children to learn about in school.
“In some ways,” Casares says, “it feels like we’re moving backwards.”
The law as it actually stands
The legislation has become a cultural lightning rod in recent weeks; it was mocked at the Oscars, and called “hateful” by President Joe Biden. The law’s actual meaning has been intensely debated.
The law’s Section 3 states: “Classroom instruction by school personnel or third parties on sexual orientation or gender identity may not occur in kindergarten through grade 3 or in a manner that is not age-appropriate or developmentally appropriate for students in accordance with state standards.”
State Rep. Joe Harding, a Republican who introduced a version of the bill, told TIME in February that his intention was to keep parents “in the know and involved on what’s going on” with their child’s education. But critics of the law argue that vague wording banning “not age-appropriate” instruction could also extend the ban on LGBTQ topics to even higher grade levels. They claim that this could be a ban on students from reading books featuring LGBTQ characters or teaching them about historical LGBTQ events.
A unique provision in the law allows parents to sue schools districts for violating the law. The provision is supported by parents. However, it has been criticised for limiting the freedom of speech.
Feinberg explains that students received a homework assignment at the beginning of the school year in which they had to share two things about themselves and two things about the teacher. The first thing her child wrote, Feinberg says, was, “I have two moms.” When Feinberg asked why, her child said they didn’t want the teacher to always say “your mom and dad.”
“[Our child] does not want to be excluded, and knows there’s a potential,” Casares says.
How the lawsuit challenges ‘Don’t Say Gay’
LGBTQ parents and allies in Florida worry that under the new law, children won’t feel as comfortable telling their class about their family or their own identity as Casares and Feinberg’s kid did last year.
Shannon Minter, the legal director of NCLR who represents the plaintiffs in the lawsuit, says he believes the Florida law “threatens to erase decades of progress in terms of making school environments more inclusive and supportive of LGBTQ kids and of kids who have LGBTQ parents.”
In several ways, the lawsuit challenges the law. First, it argues that the law and its enforcement mechanism violate the First Amendment by restricting children’s rights to receive information and unduly inhibiting teachers’ speech. The law, according to the suit was passed in order to disprove LGBTQ people. It also violates Section 14 of the Fourteenth Amendment’s equal protection clause. Third, the suit argues that the law’s “vague” language will lead to discriminatory enforcement, violating the Fourteenth Amendment’s due process clause.
Florida isn’t the only state that has restricted classroom instruction on LGBTQ topics. Clifford Rosky of the University of Utah is a law professor who challenged such laws using NCLR. But such restrictions hadn’t been passed in nearly two decades since the major advancements in LGBTQ rights of the 2010s. “Until Florida passed this law, these were really artifacts of a bygone era in which same-sex activity was a crime and same-sex marriage was illegal,” Rosky says. “The logic was that school shouldn’t encourage criminal conduct.”
Following the March 9th, 2022 passage of the Parental Rights in Education Act in Miami, Florida State Senator Ileana Garcia was confronted by protestors.
Joe Raedle—Getty Images
Florida’s law also fits into a larger wave of restrictions in the past year on what students can and cannot be taught in the classrooms. In 2021, at least 28 conservative politicians introduced legislation that would restrict discussions about race in schools. Ten of these bills were passed. At least three states—Arkansas, Montana and Tennessee—have passed bills allowing parents to have their children opt out of lessons that mention sexual orientation or gender identity, according to GLSEN, a nonprofit focused on supporting LGBTQ students. Conservative lawmakers have targeted LGBTQ students in other kinds of legislation as well—at least 12 states have passed laws banning trans students from playing on the sports team of their gender identity, and 19 states have considered bills this year that would criminalize providing gender-affirming care to young people, according to an analysis by the ACLU.
“This is a very dangerous slippery slope we find ourselves on once again,” says Nadine Smith, president of Equality Florida.
Political battles heat up
LGBTQ issues could be a motivating issue for voters in the midterms this fall, and both sides are hoping to use Florida’s law and similar bills to mobilize their bases.
John Feehery is a Republican strategist who argues that the Florida law will be a boon to the GOP at election time. The poll by Morning Consult/Politico on March 16, 2016, found that only 51 percent of U.S. residents supported banning teaching gender identity and sexual orientation from kindergarten to third grade. “From a cultural perspective, people are worried about their kids,” Feehery says. “Democrats, when cultural issues dominate, they’re losing.” LGBTQ advocates have accused DeSantis of supporting the ‘Don’t Say Gay’ bill to rally the GOP base ahead of the midterm elections and shore up support for his own possible presidential run.
But LGBTQ and Democrats alike are beginning to organize. Will Larkin, the president of Winter Park High School’s Queer Student Union in Winter Park, Fla., says that after ‘Don’t Say Gay’ became law, the group’s primary focus became getting out the vote come November. “Vote the people who allowed this to happen—and pushed for this to happen—out of power,” Larkin, 17, says. “What they’re doing does not represent us and does not represent society as a whole.”
It can be months before the election takes place and litigation may take many years to reach a conclusion. Casares, Feinberg spoke to their son about the law while they waited. They say their kid responded: “I don’t care, I’m going to say gay anyways.”
They’re hoping their lawsuit will make sure their child and other children throughout the state can keep that pride and confidence—and can keep talking about and learning about their families and their own identities in a safe environment with their peers. “[The law] is unnecessary and really has the potential to hurt so, so many people,” Casares says. “I hope this law is obliterated.”
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