Settlement in Florida's 'Don't Say Gay' lawsuit allows talk of gender identity, sexual orientation

The state and attorneys for students, parents and teachers have settled a battle about a 2022 Florida law that restricts instruction about gender identity and sexual orientation in schools.

The settlement, which comes after months of talks, seeks to draw a distinction between preventing “classroom instruction” about gender identity and sexual orientation and other school contexts in which the subjects might come up.

It would end a fight about a law that has drawn national attention, with supporters calling the measure the “Parental Rights in Education” law — and opponents deriding it as the “don’t say gay” bill. The case has been pending at the 11th U.S. Circuit Court of Appeals after a federal district judge last year dismissed it.

Quoting from documents filed earlier in the case, the settlement includes a series of legal recitals, such as that the “statute restricts only ‘instruction’ that occurs in a ‘classroom’ setting” and that the “statute restricts only classroom instruction on particular subjects — ‘sexual orientation’ and ‘gender identity.’”

In trying to draw distinctions, for example, a recital says typical “class participation and schoolwork are not ‘instruction,’ even if a student chooses to address sexual orientation or gender identity.”

As another example, the eight-page document says, “The statute restricts the use of books ‘to instruct’ students on the concepts of sexual orientation or gender identity. But the statute does not restrict mere ‘literary references to a gay or transgender person or to a same-sex couple.’”

The plaintiffs agreed to drop the case, contingent on the state Department of Education providing copies of the settlement and the recitals to each school board in the state, according to the document.

The agreement said the state would advise that a recital addressing many key issues “sets forth considered positions the state of Florida has taken in court about the scope and meaning of the statute and shall encourage the school districts to send a copy of this agreement to the principals of the schools within their respective districts.”

DeSantis’ office announced the settlement Monday afternoon, calling it a “major win against the activists who sought to stop Florida’s efforts to keep radical gender and sexual ideology out of the classrooms of public-school children in kindergarten through third grade (5- to 9-year-olds).”

“Today’s mutually agreed settlement ensures that the law will remain in effect and it is expected that the case will be dismissed by the court imminently,” the news release said.

Meanwhile, the LGBTQ-advocacy group Equality Florida described the settlement as "historic."

"This agreement successfully dismantles the most harmful impacts of the law, ensuring it cannot be wielded as a tool of discrimination against LGBTQ+ students, educators, and families," Equality Florida said in a news release.

The settlement was not posted on court dockets, but DeSantis’ office provided a copy to The News Service of Florida after sending out the news release. It was signed last week by an attorney for the plaintiffs and Monday by state Chief Deputy Solicitor General Daniel Bell.

The law, as passed in 2022, prevented instruction on gender identity and sexual orientation in kindergarten through third grade and required that such instruction be “age-appropriate … in accordance with state academic standards” in older grades.

The Republican-controlled Legislature and DeSantis went further last year by approving a bill to broaden the prohibition on instruction about gender identity and sexual orientation to pre-kindergarten through eighth grade.

The lawsuit, filed in 2022, alleged violation of First Amendment and equal-protection rights and of a federal law known as Title IX, which bars discrimination based on sex in education programs.

U.S. District Judge Allen Winsor in February 2023 ruled that the plaintiffs had not “alleged sufficient facts” to show they had legal standing to challenge the law.

“Plaintiffs have shown a strident disagreement with the new law, and they have alleged facts to show its very existence causes them deep hurt and disappointment,” the Tallahassee-based Winsor wrote. “But to invoke a federal court’s jurisdiction, they must allege more. Their failure to do so requires dismissal.”

The plaintiffs, including students, parents and teachers from several counties, took the case to the Atlanta-based appeals court. Attorneys argued in a brief filed last year that Winsor erred in dismissing the case and that plaintiffs have suffered harm from the law.

“Simply put, the LGBT individual plaintiffs have personally experienced unequal and lesser treatment at the hands of teachers and officials who now restrict what they can say, read, hear, and wear,” the brief said. “That constitutes injury.”

But the appeals court put the case on hold in September after attorneys said they were in settlement talks. Attorneys filed status reports in the ensuing months, with the latest report on Jan. 30 saying the talks were “ongoing.”

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