Get Educated: Ask, Tell, and Say Gay

Authors

Matthew Oster

Document Type

Note

Abstract

(Excerpt)

On July 6, 1999, Private Barry Winchell was murdered in his sleep by a fellow soldier for dating a transgender woman. Superiors were aware that Private Winchell was being harassed for dating a transgender woman but took no action to stop it. U.S. Department of Defense Directive 1304.26, commonly referred to as “Don’t Ask, Don’t Tell” (“DADT”), was the policy for the United States military for nearly two decades beginning in 1993. A policy meant to protect “unit cohesion” instead itself engendered hatred and violence among servicemembers. Unfortunately, government-sanctioned discrimination against the LGBTQ+ community did not end with the repeal of DADT in 2010. On March 28, 2022, the Florida State Legislature passed H.B. 1557, known as the Parental Rights in Education Act and now commonly referred to as the “Don’t Say Gay” law (“the DGS law” or “DSG”). The law’s purported purpose was to “reinforce the fundamental right of parents to make decisions regarding the upbringing and control of their children” and required all Florida school districts to adhere to guidelines, standards, and framework established by the state’s Department of Education by June 30, 2023. The law, under the veneer of championing parental rights in the public education landscape, was intended to—and does—directly undermine the core, constitutionally recognized civil rights of LGBTQ+ students and faculty members in Florida public schools. It effectively forces these individuals back into the proverbial closet (if they are out) or locks them inside it (if they are not). With its sweeping and unconstitutional breadth that directly targets the LGBTQ+ community in the name of its purported objective, the DSG law is reminiscent of the now-defunct DADT policy. Like DADT, the harms inflicted by DSG upon the LGBTQ+ community are innumerable, and as with DADT, those who seek to challenge the constitutionality of the DSG law through litigation will likely fail.

Part I of this Note will address the background of DADT, issued by the federal government on November 30, 1993, as well as the background of the DSG law, which took effect on July 1, 2022. Specifically, it will examine how both DADT and DSG silenced and terrorized those in the LGBTQ+ community. Part II will explain how and why DSG is unconstitutional under the First and Fourteenth Amendments of the Constitution, but as with DADT, the realities of the judicial review process as related to constitutional claims of injury will prevent LGBTQ+ Floridians from obtaining relief through state and federal courts. Part III will argue that public policy demands that Congress enact legislation to protect Florida’s LGBTQ+ students and faculty from discrimination as Congress did when they repealed DADT. As was the case for DADT, as a matter of practical reality, the United States Congress is best positioned to right the constitutional wrongs inflicted upon LGBTQ+ Floridians by the DSG law.