UPDATE: Say gay, Florida

This week, the State of Florida agreed to settle a lawsuit challenging the constitutionality of the Parental Rights in Education Act, better known as the "Don't Say Gay" law. The bill's text prohibited "classroom instruction by school personnel or third parties on sexual orientation or gender identity" through the third grade. The prohibition was later expanded to all grade levels. With the explicit and tacit encouragement of the Florida Department of Education, the law was broadly interpreted to mandate the banning of library books with LGBTQ characters, the cancellation of Pride Month, and the removal of rainbow flags. It also created confusion about whether it was permissible to discuss LGBTQ people in any context in Florida classrooms. 

The settlement was a resounding victory for the parents and LGBTQ advocacy groups who filed the lawsuit. It dramatically limits the law's application to a narrow set of circumstances that seldom occur in K-12 public schools. 

Since the law's passage in 2022, Popular Information has documented how it has been broadly applied in many school districts to effectively erase LGBTQ people, particularly through the removal of books with LGBTQ characters or themes. In a December 2022 interview, Vicki Baggett — a high school teacher in Escambia County, Florida, who has challenged hundreds of books — explained why she filed a complaint about the book And Tango Makes Three, a book about two male penguins who raise an adopted chick in the Central Park Zoo. "I think what would happen is a second grader would read this book, and that idea would pop into the second grader's mind… that these are two people of the same sex that love each other," Baggett explained. 

Baggett's challenges of And Tango Makes Three and numerous other books were successful. “The fascination is still on those two male penguins," Escambia County School Board member David Williams said in February 2023. "So I’ll be voting to remove the book from our libraries.”    

Last September, librarians in public schools in Charlotte County, Florida, were instructed by the school district superintendent to remove all books with LGBTQ characters or themes from school and classroom libraries. According to notes about a conversation between library staff and the superintendent, librarians were told, "Books with LGBTQ+ characters are not to be included in classroom libraries or school library media centers." This included any book with "two mothers" or "a gay best friend." 

According to the summary of the guidance obtained by Popular Information, these rules applied to books owned by the students and brought into school for silent reading. (After publication, Charlotte County told Popular Information that the prohibition only applied to elementary and middle schools.)

Overall, Popular Information documented 16 Florida counties where books with LGBTQ characters were removed from libraries due to the Don't Say Gay law. Broward County Schools, for example, banned A Day with Marlon Bundo, a fictional story about former Vice President Mike Pence’s family bunny. In the story, Marlon Bundo falls in love with another bunny named Wesley, and the two decide to get married. But when the “Stink Bug In Charge” declares that the pair can’t get married because “Boy Bunnies Don’t Marry Boy Bunnies,” the animals in the garden work together to stop the Stink Bug. The book ends with the message, “Love is Forever.”

While the law does not explicitly mention library books, the Florida Department of Education encouraged schools and librarians to interpret it broadly. 

A January 2023 training required for all Florida school media specialists emphasized that there was "some overlap between the selection criteria for instructional and library materials." The next slide says that library books and instructional materials cannot include "unsolicited theories that may lead to student indoctrination." A subsequent slide lists "unsolicited theories that may lead to student indoctrination." That list, citing the Parental Rights in Education Act, states that information about "sexual orientation or gender identity" is prohibited for K-3 students.The media specialists were encouraged to "err on the side of caution" and warned that making books prohibited by Florida law available to students could subject them to third-degree felony charges. 

Free speech advocacy groups, including the Florida Freedom to Read Project, PEN America, and the National Coalition Against Censorship, repeatedly asked Florida Education Commissioner Manny Diaz to tell schools that the law did not apply to library books. Their public and private pleas were repeatedly ignored. 

On Monday, everything changed. Florida agreed to a settlement that establishes:

1. "The law does not apply to library books."

2. "The law does not prohibit references to LGBTQ+ persons, couples, families, or issues, including: in literature, in classroom discussion (such as student-to-student speech or teachers responding to students’ questions), in students’ academic work product or teachers’ review of the same, in teachers identifying same-sex or transgender spouses or partners."

3. "The law does not prohibit Gay-Straight Alliances, including student attendance or participation by teachers or other faculty members.  The law also does not prohibit book fairs that include LGBTQ+ focused books, musicals or plays with LGBTQ+ references or characters, participation and expression by LGBTQ+ persons in other extracurricular events like school dances, or the wearing of clothing that is affiliated with LGBTQ+ persons or issues or that does not conform with one’s perceived gender identity."

4. "The law does not prohibit instruction or intervention against bullying on the basis of sexual orientation or gender identity, nor does it require the removal of safe space stickers or elimination of safe space areas for the benefit of LGBTQ+ persons."

The only aspect of the law that remains is a prohibition on classroom instruction about "sexual orientation" and "gender identity." Per the terms of the settlement, an example of this would be "teaching an overview of modern gender theory." This is not something that happens very often, if at all, in K-12 education. 

Critically, the Florida Department of Education is required to distribute this new guidance to every school district in Florida to ensure they understand the limits of the law. 

Equality Florida, which was part of the lawsuit, called the settlement "a landmark achievement in the fight for LGBTQ+ rights in Florida." The Florida Freedom to Read Project told Popular Information it was "thankful that the Florida Department of Education will finally provide school districts with the necessary guidance to ensure all students have the opportunity to see their lives and families reflected in the books they read."

Popular Information contacted the 16 school districts that had previously removed books based on the Don't Say Gay law and asked if they were returning them to the shelves. A spokesperson for Alachua County Public Schools said the district was "thrilled" with the settlement and is in the process of making sure it is in compliance. The other districts said they were awaiting formal guidance from the state or did not respond. 

Meanwhile, Governor Ron DeSantis (R), who championed the Don't Say Gay law, tried to spin the settlement as a victory for his agenda. A statement released by DeSantis claimed that "carrying water for the activists, the media wrote countless stories lying about the intent, design, and application of the law." The settlement, DeSantis claims, is evidence that he "stood up to activists and extremists who mobilized to smear and stop the Parental Rights in Education Act."