Blog

Don’t Say Gay (or Race) Bills

By: Paton Moody

Recently released data trends from the CRT Forward Tracking Project demonstrate that government actors across the country are modeling new anti-CRT measures, which aim to restrict access to truthful information about systemic racism in America, after prominent anti-LGBTQ+ bills. The alarming connection between anti-LGBTQ+ and anti-CRT measures cannot be ignored. 

Different states have used different methods, some fusing anti-CRT and anti-LGBTQ+ concepts together in the same provisions while others tack on separate anti-CRT sections to “Don’t Say Gay” bill templates. In Florida, state legislators introduced House Bill 1557 (“H.B. 1557”), commonly referred to as the “Don’t Say Gay” bill. H.B. 1557 asserts that “…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.” Essentially, Florida’s law denies the existence of queer people by terminating policies aimed at fostering inclusivity and combatting harmful stigmas which undermine the dignity and safety of LGBTQ+ students.  

Signed by Governor Ron DeSantis on March 28, 2022, H .B. 1557 is designed to marginalize LGBTQ+ students and families, purportedly in the name of protecting “parents’ rights” and defending against the “indoctrination” and “sexualization” of children. In reality, data from the CRT Forward Tracking Project highlights how bills falsely branded as defending “parental rights” are actually vehicles for heightened curricular surveillance, student education opt-outs, and book bans. The term “indoctrination” is an intentional mischaracterization of exposure to accurate historical information about systemic racial oppression and its ongoing impact in the United States, meanwhile “sexualization” often refers to gender-affirming resources and policies, safe spaces for LGBTQ+ youth, and inclusive representation of LGBTQ+ families, stories, and experiences in traditional school curriculum. Considering the mischaracterization of terms marshaled against truth in education, H.B. 1557 goes further to erode protections. The bill contains an enforcement provision that mirrors the controversial structure of Texas’ Senate Bill 8, which allows private citizens to sue anyone who “aids or abets” an abortion after six weeks of pregnancy. H.B. 1557 similarly grants parents legal standing to bring private lawsuits against a school district, potentially collecting damages and attorney’s fees in the process, if they are dissatisfied with the school’s adherence to H.B. 1557. 

A number of legal claims have been launched against H.B. 1557 due to inconsistencies in the legislation.

For example, critics express grave concerns regarding the wording of the bill. Vague terminology like “age-appropriate” may be interpreted expansively and prompt schools to exercise extreme caution and mandate complete censorship of LGBTQ+ subjects to avoid wading into a legal gray area and facing private lawsuits. In a recent complaint challenging H.B. 1557, Cousins et al. v. The School Board of Orange County et al., the plaintiffs detail this dynamic, writing that “[this] vigilante enforcement mechanism, combined with the law’s intentionally vague and sweeping scope, invites parents who oppose any acknowledgment whatsoever of the existence of LGBTQ+ people to sue, resulting in schools acting aggressively to silence students, parents, and school personnel. The law, by design, chills speech and expression that have any connection, however remote, to sexual orientation or gender identity.” Given that high schools are centers for anti-LGBTQ+ bullying and violence, as well as the fact that LGBTQ+ youth are more than four times as likely to attempt suicide due to heightened discrimination and social rejection,1 the expansion of LGBTQ+ censorship into schools has serious repercussions. And the fallout is already occurring. A teenage plaintiff in Cousins detailed how he was removed from his history class after his presentation on the Stonewall riot, how his high school rescinded anti-LGBTQ+ bullying training and student support services, and how other students publicly stomped on pride flags to stir anxiety and fear amongst queer students in the months since H.B. 1557 became law.2 

Other state government actors are now following Florida’s lead, utilizing H.B. 1557 as a template and additionally expanding the scope of LGBTQ+ suppression and adding anti-CRT components in this wave of curricular surveillance legislation. Legislators in Ohio, for example, introduced House Bill 616 (“H.B. 616”) on April 4th, 2022, shortly after DeSantis signed Florida’s H.B. 1557.

Relying on parallel assertions of the fictionalized need to protect “parental rights,” H.B. 616 borrows much of H.B. 1557’s structure and language, banning all curriculum and instructional materials engaging with sexual orientation or gender identity for children between kindergarten through grade 3, along with banning curriculum or instructional materials for older students that is not “age-appropriate or developmentally appropriate for students in accordance with state standards.” The nearly identical “age-appropriate and developmentally appropriate” vague terminology creates a similar incentive for schools to eliminate critical lifelines for queer students – be it inclusive sexual health education, literature with affirming queer representation, LGBTQ+ civil rights history lessons, or supportive peer environments like Gay Straight Alliance clubs – that could possibly be challenged by conservatives as inappropriate. 

But like a handful of other state government actors, drafters of Ohio’s H.B. 616 went even further. First, H.B. 616 adds provisions that localize potential defendants in private lawsuits from the school district as a whole to the individual teacher or school administrator. If a teacher is found to violate the bill, H.B. 616 asserts that the Department of Education shall pursue actions including but not limited to an official licensure admonishment, licensure suspension, or licensure revocation “based on the severity of the offense.” Individualizing punishment increases the pressure on each teacher to strictly limit access to truthful information about LGBTQ+ people and civil rights in their classrooms or be barred from teaching altogether, thus strengthening the law’s enforcement apparatus. 

More importantly, H.B. 616 builds upon Florida’s “Don’t Say Gay” bill to include another crucial factor: race. Expanding upon H.B. 1557’s anti-LGBTQ+ foundation, Ohio’s law strictly prohibits instruction and curriculum, teacher training, or classroom materials on “divisive or inherently racist concepts.” H.B. 616 goes on to define “divisive or inherently racist concepts” as including, among other things, critical race theory, “intersectional theory,” the 1619 Project, and Diversity, Equity, and Inclusion learning. Ohio legislators tacked on prohibitions on race and racial justice education in a separate clause, however race is nevertheless subject to H.B. 616’s individualized punishment scheme of teachers losing their licensure for violating the censorship law.

The inclusion of race in a bill largely structured on Florida’s “Don’t Say Gay” bill highlights the interconnectedness of racial justice and LGBTQ+ advancements.

Furthermore, H.B. 616 demonstrates how the exact same “vigilante enforcement mechanism” can, and currently is, being weaponized against both movements simultaneously. And Ohio is not an outlier; similar bills combining conservative wedge issues are being introduced at alarming rates heading into the 2022 election cycle. For example, Georgia’s Senate Bill 613 prohibits education with a “focus on racial and gender identity and its resulting discrimination” or that promotes “classroom discussion of sexual orientation or gender identity in primary grade levels or in a manner that is not appropriate for the age and developmental stage of the student.” 

Kimberlé Crenshaw says, “When there’s no name for a problem, you can’t see a problem. When you can’t see a problem, you can’t solve it.”3

In this wave of bills where anti-CRT and anti-LGBTQ+ actors are utilizing and blending suppressive tactics employed against both LGBTQ+ and racial justice education, recognizing how the anti-racist and LGBTQ+ movements are inherently linked is imperative to solving the challenges we face in this moment. Siloing analysis not only erases the intersectional identities of queer students of color, but it also restricts the ability of members of the different communities to fully understand how different states are learning from one another to refine, radicalize, and expand censorship laws. In practice, this undermines the goals of the collective. For example, the warranted public outrage and LGBTQ+ organizing efforts around Florida’s “Don’t Say Gay” bill – including condemnation from Hollywood, Democratic leadership, and corporations like Disney – must also be harnessed to condemn anti-CRT measures in similar, if not overlapping, legislation. On the other hand, advocates must recognize the longstanding ties between White supremacy and anti-LGBTQ+ violence. From the Ku Klux Klan attacking the popular Miami gay bar La Paloma in 19374 to the Proud Boys targeting 11 LGBTQ+ events during the first six months of 2022,5 the longstanding link between White supremacy and anti-queerness must be illuminated in order to adequately combat the rise of far-right nationalism and White supremacist groups. Regardless of the marginalized identity vector – be it race, sexual orientation, or gender identity – that a specific bill attacks, unity and coalition building are essential to combat the measures being advanced to limit access to truthful information about systemic racism and LGBTQ+ oppression in America.  

  1. Johns MM, Lowry R, Haderxhanaj LT, et al. Trends in Violence Victimization and Suicide Risk by Sexual Identity Among High School Students — Youth Risk Behavior Survey, United States, 2015–2019, Centers for Disease Control and Prevention: Morbidity and Mortality Weekly Report (MMWR) (Aug. 21, 2020), http://dx.doi.org/10.15585/mmwr.su6901a3.
  2. Complaint at 4, Cousins et al. v. The School Board of Orange County et al., No. 22-01312 (M.D. Fla. filed Jul. 25, 2022).
  3. Kimberlé Crenshaw, The urgency of intersectionality, TEDWomen 2016 Conference (Nov. 2016), https://www.ted.com/talks/kimberle_crenshaw_the_urgency_of_intersectionality?language=en.
  4. Julio Capó, Why a Forgotten KKK Raid on a Gay Club in Miami Still Matters 80 Years Later, Time (Nov. 28, 2017), https://time.com/5037803/stonewall-la-paloma-history/.  
  5. Cassie Miller, Proud Boys Aid the Right-Wing Assault on the LGBTQ Community and Reproductive Justice, Southern Poverty Law Center: Hatewatch (Jul. 13, 2022), https://www.splcenter.org/hatewatch/2022/07/13/proud-boys-aid-right-wing-assault-lgbtq-community-and-reproductive-justice.