But, in an example of how the worst-intentioned legislating can backfire on bad actors, the law’s vagueness might end up handing opponents a hidden weapon against it.
The Florida law that Republican Gov. Ron DeSantis signed last month empowers parents to take actions against offending school boards. But lawyers challenging it now tell me they think liberal parents might use this same tool to wage guerrilla legal resistance designed to expose its true intentions, making it more legally vulnerable.
If so, it could help expose the epic bad faith at the core of this whole project, which employs such legislation to foment parents’ fear of an army of deviants out to pervert or indoctrinate their kids.
This week, the Florida legislature enters a special session, and a big question is how DeSantis will handle the backlash to the law amid Disney’s opposition. Some on the right — including DeSantis’s spokesperson — have slimed Disney and other critics as “groomers” out to prep kids for sex. Republicans might retaliate by revoking Disney’s tax breaks.
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But at the same time, a mode of resistance might be developing on the other side.
The Florida law bans any “instruction” on “sexual orientation or gender identity” in lower grades, and in higher grades requires such instruction to be age or developmentally “appropriate.” It also empowers parents to seek “damages” from school districts.
The glaring problems here are pointed out in a lawsuit challenging the measure brought by Florida residents and LGBTQ groups. The statutory terms are vague, which along with its parental enforcement scheme appears designed to chill discussion of anything that might arbitrarily be deemed a violation by parents stretching those terms to cover all manner of exchanges.
For instance, the lawsuit notes, couldn’t parents object to a teacher letting a student talk about her gay parents or letting a transgender student discuss her experiences? Couldn’t parents object to a teacher’s handling of the bullying of such students?
The tension here is that the law does not directly ban discussion of particular sexual orientations or gender identities. Drafters deliberately didn’t define its language, apparently to maintain superficial neutrality.
But as the lawsuit notes, the measure’s intent to target supposed transgressions involving LGBTQ people is plain from statements made by its chief sponsors and other circumstances.
So the lawsuit argues that the measure’s vagueness and discriminatory effects violate constitutional requirements of due process, equal protection of the law, and freedom of speech and expression, among other things.
We’ll see how that plays out in court. But for now, buried in this tension you can find a road map for resistance.
As the suit notes, the law plainly isn’t intended to ban discussion of sexual orientation or gender identity related to “non-LGBTQ people.” It doesn’t intend to ban a teacher from presuming “the normalcy of opposite-sex attraction while teaching literature,” or to ban “run of the mill references” to people’s heterosexuality.
So the suit argues that under the measure, “anyone who discusses or acknowledges any aspect of LGBTQ identity must fear running afoul of the law,” while it’s “taken for granted that discussing heterosexuality or cisgender identity in school settings is perfectly fine.”
Joshua Matz, an attorney for the plaintiffs, notes that for all these reasons, the law is “guaranteed to be a lawsuit factory” that will unleash “conflict and discord for years to come.”
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“Given the breadth and vagueness of the statute, parents across the state will inevitably file suit over a huge range of classroom activities,” Matz told me. Even now, he said, teachers and schools are quelling self-expression about LGBTQ families in advance of the law taking effect this summer.
So what’s to stop parents from bringing actions against school boards from the other side — against references to heterosexuality or cisgenderism that can be deemed “instruction” in “sexual orientation or gender identity”?
“If a teacher can’t assign a story about a young girl who comes home after school to her two mommies,” Matz told me, “that teacher also can’t assign a book about a young girl who comes home to her mommy and daddy.” Taking the law at face value, Matz said, both “equally instruct” on “sexual orientation.”
Such actions from the left might be rooted in a desire to lay bare the law’s actual intent. If the law’s sponsors object to such actions while supporting ones brought against invocation of LGBT matters, doesn’t that give away the game?
“It will be extremely revealing to see which forms of classroom instruction its sponsors actually believe have been prohibited,” Matz told me.
The vagueness of the law is the point. It appears designed to stoke teacher fears of transgressing lines that aren’t at all clear, and to encourage conservative parents to zealously hunt for those transgressions wherever possible.
To be clear, nobody wants to see such a huge legal crap-fest unfold. But if it does, DeSantis and the law’s drafters are the ones to blame.