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The "Don't Say Gay" Law (Florida SB 1834)

Ciceronianus March 09, 2022 at 21:43 4025 views 19 comments
How I relish the peculiarities of the law! The more peculiar we become, the more peculiar we make it. We are best at this task when addressing, through the law, those aspects of our character involving our "naughty bits" as Monty Python used to say (generally, sex), but also whenever we seek to regulate the activities or substances we use to give ourselves pleasure or which provide avenues of escape from our otherwise dreary lives, of the sort which offend the morals of certain of us here in our Great Republic.

This is a relatively short law as laws go, but here is that portion which I think excites the most attention:

"3.?A school district may not [i]encourage classroom discussion
76 about sexual orientation or gender identity[/i] in primary grade
77 levels [i]or in a manner that is not age-appropriate or
78 developmentally appropriate[/i] for students.
79 4.?A parent of a student may bring an action against a
80 school district to obtain a declaratory judgment that a school
81 district procedure or practice violates this paragraph and seek
82 injunctive relief. A court may award damages and shall award
83 reasonable attorney fees and court costs to a parent who
84 receives declaratory or injunctive relief."

The italics are MINE (sorry, but I've always wanted to capitalize this word when quoting a law or case in a brief or motion, but have lacked the courage to do so).

Now, the lawyer inescapably a part of my being (would Heidegger call that "Being in lawyer"?) wonders the following when reading this model of legislative draftsmanship:
How does one encourage classroom discussion?
Must the discussion take place in a classroom for the law to be violated, and a cause of action arise?
What is "sexual orientation or gender identity"?
Does the fact that the law refers to a "school district procedure or practice" indicate that encouragement (whatever that may be) by a single, "rogue" teacher or other school district employee (a janitor?) wouldn't be actionable? Is it necessary that a policy or procedure, sanctioned by the school district expressly or by implication, as an entity, exist?
What do "age appropriate or developmentally appropriate" mean? Is that left to the courts and the lawyers who litigate claims that are made to decide?
Just what kind of damages are available to a parent in the action created by this law? If it's noted by a teacher that the Sacred Band of Thebes was made up of gay lovers (a matter of historical fact), or that Oscar Wilde was likely gay, for example, what damages are caused and how are they determined? Would expert testimony be required for them to be awarded?

In short, it's a remarkably poor work of legal art. Really, it stinks to high heaven. It's a mess. For that reason alone, it should never have been adopted.

But are there other reasons? I doubt if most of us would think it appropriate to encourage classroom discussion of sexual orientation gender identity in kindergarden or grades 1-3 of elementary school. Then again, it's unlikely such a discussion would arise in those particular grades. Do parents have a legitimate interest in making certain their children under the age of majority don't hear certain words, or learn what other people are in matters of gender or sexual orientation, or the right to sue if they do while in a classroom?

For my part, I think most parents are detriments to education generally, and in fact would prefer their children not be educated at all in elementary or secondary school, except in certain, limited respects, if by "education" is meant anything beyond learning to read, count, and do basic arithmetic; possibly learn to write as well, maybe know some science.

But perhaps that's all we should want schools to teach. Even so, though, do we want or need laws which preclude the use of certain words or topics in schools?


Comments (19)

praxis March 09, 2022 at 23:19 #664885
Floridians are terrified of gender identity theory because they believe it's part of a clandestine plot by the radical left to turn their kids into communist zombies.

Kidding aside, the decision to take hormone blockers is very serious and can have long-term consequences, and I think is therefore best made by a mature mind.

If public school administrators are a poor choice of potential villain they are at least concrete, unlike the amorphous and untouchable social-media.
Metaphysician Undercover March 10, 2022 at 02:27 #664912
Reply to Ciceronianus
It looks like the law is meant to encourage frivolous lawsuits. If you have pent up sexual misgivings, seek "injunctive relief".
Hanover March 10, 2022 at 03:01 #664915
It strikes me that the purpose of the law is to make local school boards in progressive districts fearful of discussing homosexuality or transsexualism.. The vagueness might be intentional. Prudence would dictate steering very clear from any such discussion. The likely result though will be defiance by someone and then the courts can figure out the scope of the law.
god must be atheist March 10, 2022 at 05:04 #664933
Quoting Ciceronianus
77 levels or in a manner that is not age-appropriate or
78 developmentally appropriate for students


These are impossible to standardize.

Aside from this, the law does NOT prohibit or inhibit PRIVATE discussions, even when it is not appropriate by age or by developmentia.
Cuthbert March 10, 2022 at 09:07 #665007
Quoting Ciceronianus
...grades 1-3 of elementary school.

First kid: I don't have a dad and a mom at home I have two moms.
Second kid: Really? How is that possible?
Teacher: Please be quiet, you two. The law forbids me to encourage this conversation.
First kid: My mom said she's my first mom and my other mom is my first mom too! [Laughter in class]
Teacher: Let's move on. I could lose my job if I say anything to encourage such a discussion. Anyway, you are too young and immature to understand these things. [More laughter in class]
Second kid: Sir, what's a lesbian? [Hysterical laughter in class. Head teacher enters and suspends teacher]

Cuthbert March 10, 2022 at 09:59 #665022
Quoting praxis
Kidding aside, the decision to take hormone blockers is very serious and can have long-term consequences, and I think is therefore best made by a mature mind.


True. I sometimes suspect there is an assumption that boys should be interested in fighting and baseball and if they show too much interest in wearing tutus and singing musical hits then they are actually girls and it would be best to get them sex-changed before any trouble starts.
Michael March 10, 2022 at 10:17 #665025
Quoting Ciceronianus
Just what kind of damages are available to a parent in the action created by this law? If it's noted by a teacher that the Sacred Band of Thebes was made up of gay lovers (a matter of historical fact), or that Oscar Wilde was likely gay, for example, what damages are caused and how are they determined? Would expert testimony be required for them to be awarded?


Or that Barack and Michelle Obama are married. Or that Joe Biden is a man.
god must be atheist March 10, 2022 at 11:16 #665040
Quoting Cuthbert
First kid: I don't have a dad and a mom at home I have two moms.
Second kid: Really? How is that possible?
Teacher: Please be quiet, you two. The law forbids me to encourage this conversation.
First kid: My mom said she's my first mom and my other mom is my first mom too! [Laughter in class]
Teacher: Let's move on. I could lose my job if I say anything to encourage such a discussion. Anyway, you are too young and immature to understand these things. [More laughter in class]
Second kid: Sir, what's a lesbian? [Hysterical laughter in class. Head teacher enters and suspends teacher]


Nice skit. Liked it.
Michael March 10, 2022 at 11:34 #665042
Quoting praxis
Kidding aside, the decision to take hormone blockers is very serious and can have long-term consequences, and I think is therefore best made by a mature mind.


The Catch-22 is that by the time they're an adult it's too late to take hormone blockers.

And that's why it requires approval by qualified psychiatrists/other doctors (as with any other medical procedure on children). It's never just a case of the child says they want it and so gets it.
Ciceronianus March 10, 2022 at 15:27 #665148
Reply to Metaphysician Undercover Quoting Metaphysician Undercover
It looks like the law is meant to encourage frivolous lawsuits. If you have pent up sexual misgivings, seek "injunctive relief".


It will certainly encourage lawsuits. The vagueness of the law is such that it isn't clear what would constitute a frivolous action, though.
Ciceronianus March 10, 2022 at 15:29 #665149
Quoting Hanover
It strikes me that the purpose of the law is to make local school boards in progressive districts fearful of discussing homosexuality or transsexualism.. The vagueness might be intentional. Prudence would dictate steering very clear from any such discussion. The likely result though will be defiance by someone and then the courts can figure out the scope of the law.


It will inspire fear in teachers and school districts, no doubt about it. I'm hopeful it's vagueness will be its downfall, though.
Ciceronianus March 10, 2022 at 15:38 #665151
Quoting god must be atheist
These are impossible to standardize.


Yes.Quoting god must be atheist
Aside from this, the law does NOT prohibit or inhibit PRIVATE discussions, even when it is not appropriate by age or by developmentia.


Not expressly, no. I doubt anything a parent or the legislature can do will prevent students from discussing these topics. But what happens if students discuss them in the classroom, privately, and an action is brought nonetheless? Will the teacher's lack of knowledge of the discussion constitute a defense, or will it be expected that a teacher must monitor discussions and prevent them to avoid a finding of "encouragement" of the discussion? Will, or can, a school district prohibit discussion of such topics by students, in order to protect itself from litigation?
Ciceronianus March 10, 2022 at 15:55 #665159
I can't help but put myself in the place of a lawyer for a school district in Florida, asked to render an opinion regarding how a school district may comply with the law and avoid liability. Employee manuals and procedures will have to be revised to prohibit the "encouragement." Signage forbidding, or at least discouraging, discussion of the topics, may be useful in avoiding liability (that has its own problems). What if "discussion" includes electronic communications? Will they have to be monitored? Will discussion of proms and other social events be allowed? Will the use of pronouns be restricted? Will "straight" rulers be banned?

Obviously, the teaching/reading/discussion of certain books will have to be prohibited. Well, most books, in fact.

praxis March 10, 2022 at 18:06 #665189
Reply to Michael

Over the last decade there’s been a steep rise of adolescence seeking treatment of this kind, mostly biological girls for some reason, and I assume that’s what Floridians are responding to. That and the rise of trans activism in general.
NOS4A2 March 10, 2022 at 18:11 #665190
I also heard it described as an anti-child grooming law. I guess it all depends on how you look at it.
Ciceronianus March 10, 2022 at 20:13 #665227
My suspicion is that parents don't actually want their children to learn anything, or be told anything, beyond what the parents already know and believe. The purpose of school is to keep children occupied while they learn some things, true, but not anything by which they may challenge or contest their parents or do or want to do what parents think inappropriate. This view may change as the children grow older and their parents are no longer responsible (or liable) for them, however.
baker March 10, 2022 at 20:46 #665236
Quoting Ciceronianus
But perhaps that's all we should want schools to teach. Even so, though, do we want or need laws which preclude the use of certain words or topics in schools?


Quoting Ciceronianus
Will, or can, a school district prohibit discussion of such topics by students, in order to protect itself from litigation?


Such is democracy. One must bend to the dictates of those who have been elected into positions of power.

And they say the Talibans are imposing restrictions on people!
Metaphysician Undercover March 11, 2022 at 03:23 #665419
Quoting Ciceronianus
Will "straight" rulers be banned?


Well, space-time is curved so straight rulers ought to be a thing of the past anyway.
BC March 11, 2022 at 06:56 #665467