On Oct. 19, the Florida Board of Education passed a new set of rules to implement and expand upon controversial laws like the “Don’t Say Gay” and “Stop WOKE” acts, which aim to further censor and punish teachers who instruct on sexual orientation and gender identity. Advocates say the rules are dangerous and still do little to clarify the persistent ambiguity about what constitutes “instruction” on sexual orientation and gender identity, or what burden of proof is necessary to determine when a teacher “espouses, promotes, advances, inculcates, or compels” students to believe certain prohibited concepts.
“This is a recipe for chilling speech in public education, using the threat of punishment to pressure teachers into giving any potentially controversial topic a wide berth,” said Jonathan Friedman, PEN America’s director of free expression and education programs.
The new rules require schools that offer gender-inclusive bathrooms and locker rooms to notify parents and outline their supervision procedures for these facilities. Though these guidelines don’t outright ban schools from designating their bathrooms in any way different from biological sex, they undermine the U.S. Department of Education’s recent guidance aimed at preventing discrimination against students based on things such as gender identity.
“[The rule] essentially puts a target on the backs of trans kids, by notifying all of their parents about this,” said Maxx Fenning, the founder and president of PRISM, an organization that works to expand access to LGBTQIA+-inclusive education and sexual health resources for youth in south Florida.
The issue of gender identity and bathrooms has been a longstanding and contentious one in Florida. In 2020, the 11th Circuit Court ruled that a Florida school board’s refusal to allow a transgender boy to use the bathroom matching his gender identity was unconstitutional. In 2021, the school board asked a federal appeals court to again consider whether the student should have been allowed to use boys’ bathrooms. Oral arguments were heard in early 2022, and a decision is still pending. While the latest rules concerning bathrooms do not ban transgender students from using the facility that corresponds with their gender identity, advocates say it will only discriminate against transgender students and put them in harm’s way.
“Unfortunately, the rule forces these school districts to put out these memos to parents letting them know, just an FYI, trans kids are going to be using the bathrooms that your kids are in,” said Fenning. “So it puts an uncomfortable target on the back of trans kids and singles them out in a way that is potentially really damaging.”
A second rule includes an expansion of the “Stop WOKE Act,” also known as House Bill 7, by barring “subjecting [students and employees] to training, instruction, or any other required activity that espouses, promotes, advances, inculcates, or compels any of the concepts” related to their administration’s definition of critical race theory.
A third rule offers specifications on House Bill 1467, which mandates that elementary school libraries post their educational and reading materials online and make them accessible for parents to search through. Friedman says this will force librarians to reconsider including books with LGBTQIA+ content—eliminating representation that has been crucial for LGBTQIA+ students.
“These new rules continue an alarming pattern of censorship by intimidation in Florida schools,” said Friedman. “The new rules go beyond the provisions and language of what was passed into law this year, subjecting teachers and students to an all-encompassing regime of prohibitions and punishments. There seems to be little concern about how these provisions will stymie the work of teaching basic literacy, or in effect suppress information and ideas that many families and students want available in their public schools.”
Any teacher who “intentionally provide[s] classroom instruction” to kindergarten through third grade students on gender identity or sexual orientation will face “revocation or suspension of the individual educator’s certificate, or the other penalties as provided by law.” As it stands, the law gives parents the right to sue a school district if they suspect that the law has been violated. However, it is unclear how the laws will be enforced and what will constitute classroom instruction. Friedman posits that a teacher answering a student’s question related to the two topics would technically be considered a violation.
“Each of the laws alone is problematic when you think about the purpose of education and open inquiry and freedom to learn,” said Friedman. “But in tandem, it’s especially pernicious, and the fact that violating the ‘Don’t Say Gay’ bill can result in teachers explicitly having their licenses revoked and suspended—if they weren’t already wary of running afoul of these laws, that will make them more so.”
The vague, punitive, and extreme nature of the law, Friedman says, is what is driving teachers away from the classroom. As of 2021, Florida Education Association said there were nearly 9,000 teaching and staff vacancies. At the beginning of 2022, FEA said that the number had grown to nearly 10,800 total openings.
“Schools ought to be welcoming places for students,” Friedman said. “It is my hope that teachers will not be bullied into never mentioning LGBTQIA+ people. It’s my hope that teachers can continue to be there for their students and be supportive of them, and particularly at the high school level be able to teach the truth about people’s identities and American history, but all of that appears to be at risk.”