16 Apr Don’t Say Gay
“Legislation used to be about making better laws. Law-making today too-often is partisan theater.” –The Lonely Realist
You’ve no doubt read about Florida’s law, HB 1557, titled “Parental Rights in Education” and labeled the “Don’t Say Gay” bill. It’s a new partisan battleground because, according to Florida Governor Ron DeSantis, “Parents have every right to be informed about services offered to their child at school, and should be protected from schools using classroom instruction to sexualize their kids as young as 5 years old.”
There is no disagreement with Governor DeSantis’ statement that parents should be informed about services offered to schoolchildren. That is a fundamental parental right that no one has questioned. Legislation to protect parental rights therefore is an imagined issue that Florida’s governor and legislature chose to address. That they did so is due to their intention to further Culture Warfare consistent with the stated rationale for HB 1557 – that is, to prevent Florida’s schoolteachers from “sexualizing kids as young as 5 years old.”
How does a teacher “sexualize” young children?
Clearly, only in a bad way.
A reader may not know what the definition of “sexualizing” is, but she/he recognizes that it’s a bad thing (isn’t that what Catholic priests did to small children?). Governor DeSantis gave an example in stating that there are adults who “are trying to camouflage their true intentions” because “kindergarten students are taught about being transgender….” Governor DeSantis’ “sexualizers” therefore must be LGBTQ schoolteachers. This not-so-subtle conclusion is supported by the statements of any number of conservative personalities, including Ben Shapiro who said that he is committed to “protecting small children from the predations of adults.” Others, however, have questioned where Florida’s Governor, members of its legislature and their boosters have gotten their facts.
Whatever the sources, no one questions that the Governor’s message was a successful effort at political fearmongering and Woke-baiting. The Governor made this explicit when he said that “leftist politicians … support sexualizing kids in kindergarten.”
Of course they do! That’s true of all Democrats!
And Republicans want to muzzle free speech about everything they disagree with because Republicans all are homophobes, racists or worse! Of course!
Electoral success in America has been moving ever further towards the skewing of fear and division. Democracies, however, survive only through unity and compromise. Tribalist extremists, whether of the right or the left, don’t believe in compromise. Yet there was a time when elected officials labored together to enact laws that bettered the lives of Americans, all Americans. HB 1557 is not one of those laws. The result today is that America’s democracy is failing … and HB 1557 is symptomatic of that failure.
Looking at what HB 1557 actually says confirms the sad reality that it was constructed to stoke partisan conflict. Among other things, it incentivizes litigation over every imaginable classroom reference to “sex” or “gender.” It already has triggered litigation over whether it is Constitutional. It also contains unhelpful ambiguities and its more controversial provisions were supported by discriminatory comments from Florida legislators, raising issues that the courts will be compelled to address. Put it all together and HB 1557 makes Florida’s lawyers, and not its education system, its students or their parents, the primary beneficiaries of the Parental Rights in Education bill. The principal losers will be the targets of forthcoming lawsuits – including Florida’s teachers and members of local school boards. This will not result in any improvement in educational quality or content, a crying need in American education. It will do the opposite.
HB 1557 contains three operative provisions. One of the three encourages parents to sue school districts to enforce parental rights by authorizing awards for “injunctive relief, damages, and reasonable attorney fees and court costs.” Although Florida’s legal bar should be thrilled, Florida’s overworked judges will be less enthusiastic. More government, more intrusion in local affairs, and more litigation …, which sounds more like blue California than red Florida.
A second operative provision prohibits school districts from adopting procedures that prevent teachers from involving parents in “critical decisions affecting a student’s mental, emotional, or physical well-being” and, in fact, requires such involvement. Putting aside the Constitutional question of whether a State government can impose such standards on local school districts – a principle at the State level similar to the States Rights issue at the Federal level – and the ambiguities inherent in the foregoing language, the provision is designed to prevent students from confiding in school personnel without parental notification. In doing so, it limits student free speech, which may well be a violation of students’ First Amendment rights – as such, it will lead to additional litigation. It also may exacerbate student mental health issues and, significantly, appears specifically targeted at encouraging gay students to keep their sexuality secret. Like other issues raised by HB 1557, it would have been better to leave the question of parental prerogatives and First Amendment rights to local school boards rather than impose a State-wide mandate that encourages litigation. It is in local board sessions that compromises most easily could have been reached.
The media-focused part of HB 1557 begins with a prohibition against classroom discussion of sexual orientation or gender identity in kindergarten through 3rd grade. Once again putting aside the Constitutional question of whether a State government can impose such standards on local school districts, and although a different cut-off undoubtedly could have been adopted, 3rd grade is a reasonable cut-off age. However, the legislation goes quite a bit further by adding that sexual orientation and gender identity cannot be discussed at any grade-level unless the discussion is “age appropriate in accordance with state [and not local] standards.” This State-wide provision will inspire parents for whom sex or gender is an issue to dispute actual and potential classroom references to sex or gender, at the very least encouraging tense parent-teacher conferences and intense PTA meetings and at the worst leading to a parade of litigations. The legislation’s incentivized parental-enforcement rights outlined above (which are intended to have an effect similar to that in the Texas Heartbeat Act) creates the threat that a failure to reach agreement with any single parent may lead to litigation.
When is it age-appropriate for schools to foster discussion of sex and gender issues? Many Americans would say “never,” that sexual questions are a matter solely for parental discussion. Others say that such subjects should be taught early and often for the betterment of society as a whole. A variety of studies confirm the that there are benefits to upper-grade sex education programs, a majority of States agree, and a majority of Americans apparently approve. Should a national majority dictate the rule in Florida? Or should Florida have a state-wide referendum to decide the question? Or perhaps leave it up to each local school district so that minority rights are respected? Whatever the answer, TLR believes that the optimal solution is not for Florida’s government to act as a partisan theater. Success in America’s diverse democracy requires satisfactory compromises of precisely these types of challenging questions. Tribal societies fight wars over such things. Americans need to decide whether they want to continue fighting a civil war in which both sides are the loser or would be better served by respecting American pluralism and democracy.
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Finally (from a good friend)