More states are proposing legislation that would prevent teachers or other staff from discussing or using LGBTQ-related materials in the classroom.
Tennessee and Louisiana have joined at least three other states — Kansas, Indiana, Florida and Oklahoma — with proposed legislation to restrict discussion of LGBTQ-related topics.
Some versions of what pro-LGBTQ advocates have dubbed "Don't say gay" bills that have cropped up in additional states are broader in scope than Florida's legislation, which gained national attention for its language preventing teachers from discussing sexual orientation or gender identity in K-3 classrooms. That bill has passed the Florida legislature and been sent to Gov. Ron DeSantis for signature.
Other proposals working their way through state legislatures include:
- Tennessee's House Bill 800, which was referred to the state’s House Education Instruction Committee last Thursday, would bar all public schools from using instructional materials that "promote, normalize, support, or address lesbian, gay, bi-sexual, or transgender issues or lifestyles," saying "the promotion of LGBT issues and lifestyles in public schools offends a significant portion of students, parents, and Tennessee residents with Christian values."
- In Louisiana, House Bill 837 would expand limits on classroom instruction and discussion related to sexual orientation or gender identity beyond 3rd grade, extending the limit up through 8th grade. It would also prohibit teachers and other staff from discussing "personal sexual identity and gender identity" with all K-12 students.
- Kansas would make using classroom materials depicting "homosexuality" a misdemeanor.
- Indiana would require written parental permission to discuss anything related to "human sexuality," including abortion, sexual activity, birth control or contraceptives, sexual orientation, gender identity and "transgenderism."
- Georgia's version of such a bill would prohibit discussion of sexual orientation or gender identity in some private school classrooms.
- Oklahoma lawmakers have introduced at least three separate pieces of similar K-12 legislation in 2022, two of which would collectively ban teachers from discussing gender and sexuality and ban librarians from including books that "make as their primary subject" sexual or gender identity. A third would prohibit schools from employing staff who promote "positions in the classroom or at any function of the public school that is in opposition to closely held religious beliefs of students.”
While the trajectory of the remaining proposed bans is still unclear, many states with anti-LGBTQ legislation have also successfully banned "critical race theory" in the classroom.
'Tide of litigation' expected
The growing number of states introducing legislation to restrict LGBTQ-related topics in schools comes despite warnings from U.S. Secretary of Education Miguel Cardona, who criticized Florida when its bill passed earlier this month.
"Laws around the country, including in Florida, have targeted and sought to bully some of our most vulnerable students and families, and create division in our schools,” Cardona said Thursday during a roundtable with LGBTQ students and families from Florida. “My message to you is that this administration won’t stand for bullying or discrimination of any kind, and we will use our authorities to protect, support, and provide opportunities for LGBTQI+ students and all students.”
The education secretary also told K-12 Dive he would use the "bully pulpit" of his position to support LGBTQ students overall.
However, some education advocates think the administration could be doing more, especially in states where transgender student athletes are being sidelined.
In states where transgender athletes have been banned from participating in school sports teams despite Title IX protections, for example, Jackie Wernz, a former lawyer for the Department of Education's Office for Civil Rights, said, "OCR has done nothing to help schools with the incredible Catch-22 they are in when balancing state and federal laws regarding transgender student rights."
Iowa most recently signed such a law, which bans transgender girls and women from playing on school and college athletic teams aligning with their gender identity. Indiana was expected to follow the trend, but Gov. Eric Holcomb, a Republican, on Monday vetoed legislation that would have kept transgender girls from playing sports on girls' school teams.
In cases where states do pass anti-transgender or otherwise anti-LGBTQ laws, OCR has several courses of action available, Wernz said. It could issue focused guidance specifically explaining how it would respond if a school follows an athlete ban law, or it could open investigations against schools that have stated they are implementing bans and make public the letters related to the cases for other schools to reference.
"They have done nothing more than issue an impotent notice of interpretation, empty promises to help schools comply, and weak press releases that vaguely refer to not standing idly by with respect to transgender student rights," Wernz, who now represents public schools as a private attorney for Thompson & Horton, said in an email.
"In this landscape, I can tell my clients 'federal supremacy' all day long, but when it comes down to it, it is completely reasonable for school leaders to look at the lack of federal enforcement and choose to follow their state laws," Wernz said.
Such a decision, she added, would reflect "on the federal government’s failure to act in a way that supports any other choice by schools in these states."
While the government has not legally challenged any passed legislation, many civil rights organizations have mobilized against proposed and passed laws they say restrict both gender and racial discussions in the classroom.
More challenges are expected, considering some "Don't say gay" bills specifically could run afoul of Title IX, especially if schools are educating about hetero-normative relationships.
The Association of Title IX Administrators "expects to see a tide of litigation against this pernicious law and those that attempt to mimic it, depending on how it is enforced, and Title IX may play a key role," said Brett Sokolow, president of the group, in an email. "Suing school teachers is going to drive good teachers out of a state that is already running short of high-quality teachers."
Some districts may also purposely challenge anti-trans or anti-LGBTQ laws. However, most districts won't do that, Wernz said.
"They want to keep their heads low and keep their districts out of the spotlight," Wernz said. "The best way to do that is to calculate which violation you’re most likely to get dinged for."