The Morning Dispatch: Breaking Down the So-Called ‘Don’t Say Gay’ Bill

Happy Tuesday! One day into the new job Esther is already furious at the Buffalo Bills for matching the Bears’ offer sheet on restricted free agent offensive lineman Ryan Bates and blocking him from coming to Chicago. (Yes. Most enraged. And I definitely know what all those sports words mean. -E)

Quick Hits: Today’s Top Stories

• Russia and Ukraine are set to resume cease-fire talks in Turkey today, after Ukrainian President Volodymyr Zelensky said this weekend Ukraine might accept an officially neutral status as part of a peace agreement, which would prohibit the country from joining NATO in the future. For now, fighting continues, and the Wall Street Journal reported Monday that two Ukrainians and a Russian oligarch involved in the negotiations were seemingly poisoned earlier this month—a possible attempt to sabotage the talks. They’ve since recovered from the non-life threatening symptoms, including, allegedly, peeling skin and temporary blindness.

• President Joe Biden released a $5.8 trillion budget request for fiscal year 2023 on Monday that included $30 billion for police and community anti-violence programs, a 1.5 percent real increase in defense spending, and a 20 percent tax on households worth more than $100 million. The White House hopes the extra tax revenue will help shrink the deficit by $1 trillion over a decade, but an administration’s annual budget request is a wishlist that can (and generally does) end up looking very different after congressional negotiations. Democratic Sen. Joe Manchin, for example, is already giving Biden’s proposed tax on unrealized capital gains the stink eye.

• Florida Gov. Ron DeSantis on Monday signed into law a much-debated bill limiting how—and at what grade levels—public school teachers can lead lessons about gender identity and sexual orientation.

• With COVID-19 infections within China reaching near-record levels as the Omicron variant spreads, local officials in Shanghai ordered lockdowns of the 26-million-person city on Monday that—given its key role in China’s (and Western companies’) manufacturing and trade—could cause additional global supply chain disruptions.

• Weeks after the January 6 Select Committee alleged—in an effort to obtain documents from Claremont Institute scholar and Stop the Steal plotter John Eastman—that former President Donald Trump may have committed federal crimes in his attempt to overturn the results of the 2020 election, a federal judge on Monday appeared to concur, arguing Trump “more likely than not” attempted to obstruct an official proceeding. The ruling doesn’t guarantee the Department of Justice will pursue criminal charges against the former president, but the U.S. District Court Judge—David Carter—did order 101 Eastman emails to be released to the committee as a result of the ruling.

DeSantis Signs a Controversial Measure

Depending on who you ask, Florida’s Republican Gov. Ron DeSantis signed into law on Monday a bill that either protects 5-year-old children from “sexualization” and “grooming” or prevents them from acknowledging the existence of their loved ones. It either stops insidious “indoctrination” in its tracks, or imposes a “dangerous” new censorship regime in the Sunshine State. But as is often the case, reality is far more nuanced—and far less hyperbolic—than partisan narratives would lead you to believe.

We’ve thus far held off on covering House Bill 1557—the Parental Rights in Education Act if you support it, the “Don’t Say Gay” Bill if you don’t—both because key details of the legislation were still in flux and because DeSantis’ signature was not guaranteed. But with the statutory language finalized and the provisions now set to go into effect on July 1, it’s worth taking a closer look at one of the most controversial—and mischaracterized—laws of 2022.

GOP State Rep. Joe Harding introduced the measure in early January, arguing it was necessary to address Floridians’ concerns about what is being taught in public schools and provide parents with an opportunity to take a more active role in their children’s education. “This bill is about defending the most awesome responsibility a person can have: being a parent,” he said. “That job can only be given to you by above.”

How did he go about doing that? The initial draft of his legislation would require schools to notify parents of any changes to the “services or monitoring” related to their child’s “mental, emotional, or physical health,” and prohibit districts from adopting procedures that encourage students to withhold such information from their parents. It would also forbid school districts from “encourag[ing] classroom discussion about sexual orientation or gender identity in primary grade levels or in a manner that is not age-appropriate or developmentally appropriate for students.” If a parent believes a teacher violated this statute and their concern is not “resolved” by the school district, they could sue the relevant school district for injunctive relief, damages, and attorney fees. (“This is going to be a lawsuit factory,” Gabriel Malor—an appellate litigator based in Virginia—told The Dispatch. “This is going to be great for trial lawyers in Florida.”)

It was the “classroom discussion” clause that earned the proposal its “Don’t Say Gay” moniker from progressive opponents as it worked its way through the Florida legislature in late February and early March, passing the House 69-47 and the Senate 22-17. “This bill, from its introduction, has been used as a vehicle to marginalize and attack LGTBQ people,” State Rep. Carlos Smith—a Florida Democrat—argued earlier this month. “[It] sends a terrible message to our youth that there is something wrong with LGBTQ people, that there is something so dangerous or inappropriate about us that we have to be prohibited and censored from the classroom.”

During the legislative process, the bill was amended to swap out “classroom discussion” for “classroom instruction,” a tweak that ostensibly would leave more room for students to ask questions or introduce conversations on their own. “That’s a bit of an important distinction between the two [versions],” Malor said. “Classroom instruction, of course, has a much more structural connotation, a from-the-teacher-to-students-type situation, rather than students simply raising something in class and, does the teacher have to cut them off or not?”

But the original version of the legislation had already made waves, and Florida Democrats’ cultural allies in the media and corporate America ran with the now-imprecise claim that it would legally prohibit children from bringing up certain words or concepts in school. Comedians and late-night hosts lampooned the effort, while actors and celebrities sought to push back by repeatedly tweeting or saying the word “gay.” Biden administration officials accused Florida legislators of “bullying” the nation’s “most vulnerable students and families,” and high-school-aged students staged walkouts across the state. Nadine Smith—the executive director of Equality Florida, an LGBTQ advocacy organization—accused DeSantis of “pander[ing] to his right-wing base” in preparation for a 2024 presidential bid.

But criticism from those groups is a badge of honor in Republican circles; the bill’s fate wasn’t in any real jeopardy until Disney CEO Bob Chapek—facing pressure from his employees—broke the company’s public silence on the legislation and announced a pause on all political donations in the state of Florida, where Disney is one of the largest and most powerful employers. “This is not just an issue about a bill in Florida, but instead yet another challenge to basic human rights,” said Chapek, who briefly met with DeSantis to discuss his opposition to H.B. 1557.

But the Mouse’s objections proved fruitless, as DeSantis’ administration never wavered from early indications it favored the bill. “Throughout this legislative session, this bill has been maliciously maligned by those who prefer slogans and sound bites over substance and common sense,” Florida’s Lt. Gov. Jeanette Nuñez said yesterday. “Fortunately, Gov. DeSantis and I believe that parents should have a say. We will not back down to woke corporations and their same tired tactics that are steeped in hypocrisy.”

Depending on how pollsters phrased the question, the bill’s proponents and opponents can both point to surveys conducted this month purporting to show they hold the political upper hand. A Morning Consult/Politico poll found 50 percent of respondents support “banning the teaching of sexual orientation and gender identity from kindergarten through third grade,” compared to 34 percent who oppose doing so. But an ABC News/Ipsos poll found just 32 percent of respondents support legislation prohibiting “classroom lessons about sexual orientation or gender identity in elementary school,” compared to 62 percent who oppose.

Which definition hews more closely to reality? It’s difficult to say, because—even after multiple rounds of revisions and amendments—parts of the legislation remain overbroad. The definition of “instruction” will almost assuredly be tested in court, for example. And although many of the bill’s proponents claim its provisions apply only to children in kindergarten through third grade, the updated legislation also prohibits classroom instruction on sexual orientation or gender identity for public school students of all ages—if that instruction is “not age-appropriate or developmentally appropriate” in accordance with state standards. “I don’t know what ‘age appropriate’ means, and I suspect judges and parents will disagree,” Malor said. “That’s what we’re going to see in the lawsuits.”

A spokesman for Equality Florida said Monday the group is setting up a legal defense fund for students and parents who believe the law violates their rights, but Eugene Volokh—a UCLA law professor who focuses on the First Amendment—thinks Florida’s legislature is on solid constitutional ground. “Someone’s got to decide what is going to be taught in K-12 schools and how it’s going to be taught,” he told The Dispatch. “You can imagine having the teacher decide it, you can imagine having the principal decide it, you can imagine having the local school board decide it, you can imagine having the legislature decide it. But the First Amendment doesn’t tell us who makes that decision. And if the legislature wants to say, ‘Look, we hire teachers to teach our students and to teach our students the way we want those students taught,’ there’s no First Amendment problem with it.”

Volokh then outlined the basic position of the bill’s proponents. “I’m not opposed to having my kids learn about sexual orientation and gender identity. But when they were in kindergarten through third grade, I might be reluctant to have them taught that in school by somebody whose judgment I might not entirely trust,” he said. “There are lots of arguments you can have about, as an institutional matter, what’s the optimum level [of government] to make these decisions? But those aren’t constitutional arguments, those are arguments about sound administration of education systems.”

On that note, Malor sees two additional issues cropping up when the Parental Rights in Education Act goes into effect next school year, including the potential outing of students to their parents. The law includes a carveout for instances where a “reasonably prudent” person would conclude disclosure might result in parental abuse, abandonment, or neglect, but if an older student struggling with their sexuality or gender identity confides in a teacher, and that teacher recommends they speak with the school’s guidance counselor, would that trigger H.B. 1557’s mandatory reporting provision?

Second, Malor believes the law’s aggressive enforcement mechanism could ultimately lead to districts prohibiting innocuous discussions even the bill’s sponsors argued should be allowed. 

“School districts are going to be under enormous financial pressure to make sure they’re not getting these lawsuits,” he said. “They’re probably going to implement policies saying something along the lines of, ‘Okay teachers, we need you to not come anywhere near this line because we don’t want to defend these lawsuits.”

Worth Your Time

• Virginia Hughes reports in The New York Times on a study suggesting adolescents are most susceptible to damaging effects of social media during two particularly vulnerable ages: “Analyzing survey responses of more than 84,000 people of all ages in Britain, the researchers identified two distinct periods of adolescence when heavy use of social media spurred lower ratings of ‘life satisfaction’: first around puberty—ages 11 to 13 for girls, and 14 to 15 for boys—and then again for both sexes around age 19.” Hughes also reports this nugget: “For all ages, participants who felt bad about their lives wound up spending more time on social media a year later. This suggests that for some people the technology may be a coping mechanism rather than the cause of their gloom.”

• After Biden’s latest verbal blunder, Noah Rothman makes the case in Commentary for POTUS to pipe down. “Biden undermined the entire premise of his speech with one aggressive adlib: ‘For God’s sake, this man cannot remain in power,’” he argues. “It was throat-clearing that could only further destabilize the situation in Eastern Europe, as evidenced by an administration-wide effort to clean up after the president’s intemperate remarks. While it’s sometimes welcome, it is not the president’s job to be a beacon of moral clarity. His role is to establish America’s national interests in as discrete a manner as possible and behave in ways that advance those objectives. Time and again throughout this crisis, Biden has let his mouth get in the way of that imperative.”

• For The Atlantic, Derek Thompson unpacks both the causes and consequences of America’s stagnating population growth. “The implications of permanently slumped population growth are wide-ranging,” Thompson writes. “Shrinking populations produce stagnant economies. Stagnant economies create wonky cultural knock-on effects, like a zero-sum mentality that ironically makes it harder to pursue pro-growth policies. (For example, people in slow-growth regions might be fearful of immigrants because they seem to represent a threat to scarce business opportunities, even though immigration represents these places’ best chance to grow their population and economy.) The sector-by-sector implications of declining population would also get very wonky very fast. Higher education is already fighting for its life in the age of remote school and rising tuition costs. Imagine what happens if, following the historically large Millennial cohort, every subsequent U.S. generation gets smaller and smaller until the end of time, slowly starving many colleges of the revenue they’ve come to expect.”

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Toeing the Company Line

• On today’s episode of Advisory Opinions, David and Sarah welcome lawyer Seth Kretzer to talk religious liberty at the Supreme Court. Plus: Ginni Thomas’ texts, vaccines back at the Supreme Court, free speech and–of course–Will Smith and the slap heard ‘round the world.

• It’s a busy day at the site. Audrey has a piece examining House Republicans looking to 1994 for strategy on taking back the House this fall, Andrew Fink argues that Vladimir Putin won’t stop his war on Ukraine until he has no other options, Brian Riedl details the Biden administration’s sleight of hand in releasing its 2023 budget, and Gary Schmitt contends Europe will have no peace as long as Putin remains in power.

Let Us Know

What do you think about Florida’s bill? Was it the best way to address parental concerns about classroom instruction and thorny topics?

Reporting by Declan Garvey (@declanpgarvey) and Esther Eaton (@EstherJay10).