The Chapman Law Review is proud to publish Professor Catherine Jean Archibald’s article: Still Problematic, Even Post-Settlement: Florida’s “Don’t Say Gay” Law and the Federal Constitution. Below, you will find the abstract from the article.

Still Problematic, Even Post-Settlement: Florida’s “Don’t Say Gay” Law and the Federal Constitution

By Catherine Jean Archibald

Abstract

Florida’s “Don’t Say Gay” Law, officially part of the Parental Rights in Education Act, came into force in 2022. As amended in 2023, this law prohibits classroom instruction on sexual orientation or gender identity for children in pre-kindergarten through the eighth grade, and forbids any instruction on sexual orientation or gender identity that is not “age-appropriate or developmentally appropriate” for children in any grade.

From the start, this law was controversial and was challenged in court as a violation of the U.S. Constitution. In March 2024, a settlement agreement was reached in a lawsuit challenging the law, providing clarification on various aspects, including what constitutes forbidden conduct under the law.

This Article argues that although the settlement agreement helps resolve many of the problematic aspects of the “Don’t Say Gay” Law, the law still violates the Constitution. This Article contends that this law violated and still violates the First Amendment’s protection of freedom of speech because of its chilling effect on protected speech and by promoting a particular religious viewpoint in schools. Additionally, it violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment as it is an overbroad and vague law that was enacted with discriminatory animus against the LGBTQ+ community, and it discriminates based on sexual orientation and gender identity. This Article concludes that the courts should strike down this law and others like it as violative of the U.S. Constitution.