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Thursday, March 24, 2022

The Only Way "Don't Say Gay" Is Consistent With Title VII Is Complete Gender Neutrality

I'm following up on my post Florida Don't Say Gay Bill Arguably Requires 100% Gender Neutrality Until 4th Grade, one, because I've thought more about it, two, because the law really irks me, and three, because I want to explain why an employment lawyer is writing about an education law.

If I go through my memories of law school, back when dinosaurs roamed, one of the things they taught us is the rules of statutory construction. That is, how judges are supposed to interpret laws after they are passed. And one thing that the rules of statutory construction say is that separate statutes must be read together, when possible, to achieve a harmonious statutory scheme. It is assumed that the legislature does not intend to create inconsistency. (Ha! Have they ever listened to a legislative debate?) But anyhow, that's one of the things a judge has to look at. 

And I keep coming back to two laws that are the backbone of any employment law practice: Title VII, which is the federal law prohibiting discrimination in the workplace, and the Florida Civil Rights Act, which is the state law prohibiting workplace discrimination. We all know that the Supreme Court has already ruled that sexual orientation discrimination is sex discrimination covered by Title VII. So sexual orientation discrimination or harassment based upon sexual orientation violates laws prohibiting sex discrimination in the workplace. That is established law. 

So how does that affect the interpretation of Florida's Don't Say Gay law? Let's look at it again: "Classroom instruction by school personnel or third parties on sexual orientation or gender identity may not occur in kindergarten through grade 3 or in a manner that is not age appropriate or developmentally appropriate for students in accordance with state standards."

Let's look at two second grade teachers. Bob is married to a woman. Barb is married to a woman. Bob and Barb are both asked about their spouses by their students. If school boards, schools, or the state interpret this law to mean that Bob can answer but Barb can't, then they have violated Title VII and the Florida Civil Rights Act. If Barb is disciplined for mentioning her same sex spouse but Bob is not disciplined for mentioning his opposite-sex spouse, that is sex discrimination.

Barb is terrified that she might accidentally mention her spouse during class. If she is subject to extra scrutiny of her teaching methods due to her sexual orientation, that's sex discrimination.

Both Bob and Barb assign students a project to draw their families. Susie draws two dads. When it comes time for each student to discuss their families, do they have to skip Susie? Or tell her she can't mention the dads? Does that make Barb feel upset or attacked? If so, she is being harassed due to her gender. 

The school removes all books with two moms, two dads, any LGBTQ characters. Only straight characters and opposite sex marriages allowed in the library. Barb feels uncomfortable with this. She is being harassed due to her gender.

Now let's look at the gender neutral way to interpret the statute. Both Bob and Barb can talk about their spouses, but not use the terms "husband" or "wife." They can say spouse or partner. Both are treated equally. The kids label moms and dads as "parent" and refer to them as such. Both Barb and Bob are comfortable. The school leaves the books alone. Or removes all books relating to any kind of marriage or romance, including heterosexual ones. Both Bob and Barb feel comfortable. Nobody is being treated differently or made to feel uncomfortable due to their sexual orientation. 

So I repeat my assertion from last week. The Don't Say Gay bill may be the most accidentally woke law I've ever seen. I think that parents and students should insist that it be interpreted as requiring absolute gender neutrality. If schools, school boards, or the state of Florida does otherwise, school employees can bring workplace discrimination claims under Title VII and the Florida Civil Rights Act. And, although I don't do education law, students could have claims under Title IX, the law prohibiting sex discrimination in education.

Don't let the bigots get you down. Make them follow their new law to the letter, assuming it gets signed.

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I appreciate your comments and general questions but this isn't the place to ask confidential legal questions. If you need an employee-side employment lawyer, try http://exchange.nela.org/findalawyer to locate one in your state.