Anti-LGBTQ measures

Penn Law’s Tobias Wolff discusses the Florida ‘Don’t Say Gay’ bill and a Texas directive on transgender children.

Marchers waving gay pride flags make their way long a boardwalk with the skyline of St. Petersburg, Florida, in the background
Marchers make their way toward the St. Pete Pier in St. Petersburg, Fla., on Saturday, March 12, 2022 during a march to protest the controversial “Don’t Say Gay” bill passed by Florida's Republican-led legislature and now on its way to Gov. Ron DeSantis’ desk. (Image: Courtesy Martha Asencio-Rhine/Tampa Bay Times via AP)

Nearly 200 anti-LGBTQ bills are being debated in Republican-controlled statehouses around the nation. Most target transgender people and youth, followed by school policy bills that seek to ban classroom conversation and books about LGBTQ people under the guise of “parents’ rights,” according to Freedom for All Americans, a bipartisan anti-discrimination campaign.

In Florida, the Parental Rights in Education bill, dubbed by its critics as the “Don’t Say Gay Bill,” is awaiting the signature of Republican Gov. Ron DeSantis, who has signaled he will sign it.

Some states aren’t waiting for lawmakers to pass bills. In Texas, an appeals court this week again blocked the state from investigating parents who give their transgender children gender-affirming care. This comes after Republican Gov. Greg Abbott declared such care is “child abuse” and ordered the state’s Department of Family and Protective Services to investigate it as such.

Penn Today reached out to Penn Law’s Tobias Barrington Wolff for background on the Florida and Texas measures and where they stand.

Will the Texas governor’s directive on treatment for trans adolescents and the new Florida ‘Don’t Say Gay’ law stand up in court?

That’s a difficult question. The anti-trans directive in Texas is being challenged in part based on Texas law concerning the procedures required for adopting new administrative policies. I do not have any expertise on those questions. It also raises profound questions about the constitutional protection afforded the parent-child relationship, the demand that child welfare policy serve the best interest of the child, and the principle of equal human worth under the Equal Protection Clause. In my view, the appalling policy in Texas violates a number of these core principles, but courts will have to break some new ground in order to issue a holding to that effect.

In Florida, the path to challenging the ‘Don’t Say Gay’ law is also a tough one. That law sets curricular and student-relations policy for Florida public schools. A state has broad leeway in choosing its own curriculum, even if it chooses an approach that fosters ignorance. It seems clear there must be some constitutional limits to that principle. If a school adopted open white supremacy as its official teaching, there are precedents of the Supreme Court interpreting the Thirteenth and Fourteenth amendments that I think would lead courts to declare that curriculum invalid. There is an argument that the same principle applies to a curriculum that erases gay people, but the precedent is less clear in that setting.

Florida’s bill in particular is vague in many ways. Was this intentional? How will teachers know if they are upholding the law?

Unfortunately, I think the vagueness is deliberate and nefarious. This law includes provisions that authorize any parent to bring a lawsuit seeking an injunction, damages, and attorney’s fees if they believe the school district has violated its terms. The vagueness of the law will likely lead school districts to eradicate any possible reference to gay issues, gay families, or gay people in history in order to avoid punitive lawsuits by angry parents.

What can we take from the fact that a Texas state court has temporarily stopped child abuse investigations of some parents of transgender children, ruling that Abbott exceeded his authority?

I am glad that the state trial court has temporarily enjoined enforcement of this policy. But the ultimate fate of this policy will likely rest with the Supreme Court of Texas, and I worry about the outcome there.

Do you think the GOP’s targeting of transgender people may have a shelf life, just as both parties’ efforts against same-sex marriage shifted along with public opinion?

I don’t know whether any anti-LGBTQ initiative has a shelf life. During the confirmation hearings of Judge Ketanji Brown Jackson, we saw GOP Senators raising the Obergefell decision and the issue of marriage equality once again. I am sorry to say that we will likely see the overruling of Roe v. Wade and Planned Parenthood v. Casey this term, and the decisions securing equal treatment and basic liberties for LGBTQ people may well be next.

What should people do who want to stand up to these laws?

Educate yourself about these terrible policies: what they actually say and what they would mean to vulnerable young people in these states. Speak up about these issues, not just in public discourse but in conversation with friends and family when the issue comes up. Don’t let bad information and thoughtless cruelty go unanswered. And contribute to organizations that are fighting hard to protect LGBTQ kids and teens, particularly the National Center for Lesbian Rights.

Tobias Barrington Wolff is the Jefferson B. Fordham Professor of Law and deputy dean for equity and inclusion at the University of Pennsylvania Carey Law School.