The Washington PostDemocracy Dies in Darkness

There’s a reason the ‘don’t say gay’ bills don’t say what they mean

If they did, they might not stand up to legal — or moral — scrutiny

Florida Gov. Ron DeSantis (R), flanked by elementary school students, displays the signed Parental Rights in Education Bill during a news conference on March 28. (Douglas R. Clifford/Tampa Bay Times/AP)
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The last time I wrote about Florida’s “don’t say gay” bill, which prohibits “classroom instruction by school personnel or third parties on sexual orientation or gender identity,” I received an email from a reader that I haven’t been able to stop thinking about.

“Stop lying to people about this bill in Florida,” the man wrote. “It doesn’t say anything about not saying gay.”

Followed immediately by this: “Personally I don’t think it goes far enough . . . School is not the place for teaching kids about being a [here he used a derogatory slur for a transgender person] or this whole made up thing about gender fluid or whatever.”

On the one hand, the reader seemed to want to imply that I was paranoid. This bill wasn’t about discriminating against LGBTQ people, he seemed to be saying. How could it be, when it didn’t even mention the word “gay”?

On the other hand, this reader clearly knew the bill was meant to target classroom conversations about LGBTQ people. In fact, his complaint was that the bill did not target them with sufficient gusto.

This seems to be the strategy behind the Florida legislation, the Parental Rights in Education Bill, and the copycats that are springing up in states like Ohio and Louisiana: Pass homophobic and transphobic bills cloaked in neutral language, then pretend liberals are crazy for calling the bills homophobic and transphobic. It’s a mix of dog whistling and gaslighting. It’s a gaswhistle. A noxious leak that anyone can smell, if they’re being honest.

Fans of Florida’s ‘Don’t Say Gay’ bill have a new favorite word: ‘Grooming’

My reader was technically correct. You won’t find a single mention of the word “gay” or “lesbian” or “transgender” or “nonbinary” in these bills. Instead you will find “sexual orientation” or “gender identity" which are, taken at face value, nondiscriminatory. Everyone has a gender identity, after all. Everyone has a sexual orientation. “Gay" and “bisexual” are sexual orientations, but so is “straight.” “Transgender” and “nonbinary” are gender identities, but so are “man" and “woman.” Technically the bills are banning all discussion of all sexual orientations or gender identities.

But does anyone believe it would be considered an inappropriate indoctrination into heterosexuality for a first-grade class to read about a family that included a mom and a dad? What about a spelling exercise in which Savannah shopped for a S-K-I-R-T and E-A-R-R-I-N-G-S?

Now what about a story in which the family included a dad and a dad — or a parent who used to be known as “Mom” but now went by “Papa”? What if Savannah wasn’t looking for a skirt, but Samuel was?

These laws are written as though they will be equally applied to all discussions of gender and sexuality. But the people advocating for them are not idiots, I don’t think, and neither are the rest of us. Anyone living through the “define ‘woman’ ” panic of 2022 knows that the laws are actually likely to be applied only to a subset of people. Discrimination and bias can live in laws, rules and conventions that are not explicitly discriminatory.

Recently Princeton historian Kevin Kruse discussed, in a fascinating Twitter thread, how Black people historically have been denied gun permits even when living in so-called gun-friendly jurisdictions. The issue wasn’t the permit language of their locales. The issue was the racism of sheriffs and city employees determining who got the permits. “When racists are in charge of administering seemingly race-neutral laws, they often apply them in uneven ways that reflect their racism," Kruse wrote.

When homophobes are the ones using seemingly neutral laws, the actual effects of those laws will be homophobic. In other words, the bills don’t have to specify which sexual orientation they’re referencing. Everyone knows which violations are going to get reported.

“It’s the concept of ‘unmarked terms,’ ” explains Shannon Minter, an attorney with the National Center for Lesbian Rights. “When we talk about race, people immediately assume we’re talking about the race of people of color. When we talk about gender issues, people assume we talk about women. The group with dominant power [White people, men] is ‘unmarked.’ ”

Several years ago, Minter says, the NCLR successfully filed challenges against discriminatory laws that specifically mentioned homosexuality: In South Carolina, for example, schools were prohibited from discussing “homosexual relationships except in the context of instruction concerning sexually transmitted diseases.” But this new batch of laws relies on unmarked terms, Minter says. “They rely on the social reality that everyone knows ‘sexual orientation’ really means LGBT.”

Good legislation is clear and direct. It allows average citizens to know what they’re debating and to create informed opinions about the laws that will govern them. The “don’t say gay” bills are the opposite of that, specifically because they do not say gay. They conceal their true purpose. Instead of having a debate over how to talk to kids about differences in families and gender identification and all the different ways people see and love themselves and each other, we are debating what we are debating.

What counts as official “classroom instruction” vs. casual discussions, involving teachers, that happen in the classroom? Even legal experts aren’t in agreement on how the law will be applied.

The Florida bill’s opponents are worried about a world in which teachers have no meaningful way to discuss the real world inhabited by their students, which risks leaving students with the impression that non-straight or non-gender-conforming individuals are somehow deviant. (Some teachers interviewed about the bill have said that, lacking clearer guidelines, they might err on the side of self-policing, avoiding even basic conversations about family structure.)

The bill’s supporters seems to think the idea of talking about gender and sexual orientation with school-age kids is inherently creepy. Maybe that’s because it’s historically been hard for some people to picture discussing homosexuality without discussing sex. Or maybe they think every conversation about gender automatically means talking about genitalia.

Whatever the case, the loudest voices on this side are talking as if these bills are the only thing standing between their 6-year-olds and a cabal of perverts trying to “groom” them in between Language Arts and recess. Do they think a teacher hellbent on molesting students will be stopped by a law discouraging discussions of sexual orientation?

Perhaps the people who support these bills might feel differently if they understood there are perfectly wholesome ways to talk sexual and gender difference in the classroom: answering honestly if a student asks why their friend has two moms, or asking the kids which pronouns they prefer. A 2016 Pew Research survey found that 87 percent of Americans knew someone who is gay. A 2021 Pew survey found that 42 percent knew someone who is transgender and 26 percent knew someone who goes by gender-neutral pronouns. Do supporters of the “don’t say gay” bills truly want their children’s schools to be forced to legally pretend that Uncle Mike or Neighbor June don’t exist?

Look, if you can only get citizens excited about your bill by refusing to be honest about what your bill actually does, you haven’t just written a bad bill. You’ve written it in spectacularly bad faith. And maybe these bills are written like this for purely practical reasons, to make it more likely that as law they’ll stand up to a constitutional challenge.

But there’s another reason: Writing it honestly would mean supporters would have to reveal their intolerance. And that wouldn’t be a very good lesson for the children.

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