A state law that bans DEI programs and discussion of LGBTQ+ identities in K-12 schools will go to court Dec. 10, teeing up what is expected to be a yearslong battle over free speech in public education.
A coalition of Texas LGBTQ and teacher advocacy groups, students and a teacher are asking Trump-appointed Judge Charles Eskridge of the Southern District of Texas in Houston to halt all Texas public K-12 and charter school districts from enforcing parts of a state law that schools have leveraged to cut Gender and Sexualities Alliance (GSA) clubs and bar teachers from using gender-affirming pronouns.
Senate Bill 12 bans programming related to diversity, equity and inclusion; prohibits employees from discussing gender identity and sexual orientation and helping students “socially transition” their gender by using preferred names and pronouns; and bars clubs based on gender identity and sexual orientation.
Also dubbed the “Parents’ Bill of Rights,” the sweeping law requires schools to publish course content, distribute parental opt-in forms for health services and sexuality lessons and to create a process for parents to report violations of the law.
The plaintiffs say SB 12 lacks clarity and strips students of their First Amendment rights to receive information and gather, while the attorneys for Texas argue that SB 12 enhances parents’ control over their child’s education.
The outcome of a lawsuit over a law with similar provisions, Florida’s so-called “Don’t Say Gay” law, could provide the best indication of how Texas’ case could pan out. The Florida lawsuit ended with a settlement that resulted in Florida clarifying and narrowing the provisions in the law to still allow GSAs and faculty to reference gender identity and sexual orientation outside of lessons. However, the Texas case, GSA Network v Morath et al., raises new questions, including whether schools can forbid faculty from using students’ gender-affirming names and pronouns if their parents request it.
Some experts say SB 12 has unprecedented scope, making the law unconstitutionally vague while it infringes on the First Amendment rights to receive information and gather.
“It’s a gag rule,” said David Hudson, a law professor at Tennessee’s Belmont University who authored “Let the Students Speak!” chronicling free speech in public schools.
“It prohibits a substantial amount of speech that ought to be protected,” Hudson said.
First Amendment and vagueness arguments
SB 12 bars school districts from developing trainings, programs and activities that reference race, color, ethnicity, gender identity and sexual orientation — also considered the DEI provisions in the law — and requires them to punish employees or contractors who engage in DEI. The plaintiffs argue this could reach beyond school hours and off campus to regulate employees outside their official duty, while leaving districts to interpret how to enforce the bans on assisting with social transitions and referencing race or gender identity.
“We're seeing school districts interpret that in many different ways, some of which have been incredibly harmful for Texas students,” ACLU attorney Brian Klosterboer said.
Some schools have cut GSAs and compelled faculty to call transgender students by their “deadnames,” outing them and leading some to stop participating in class to avoid hearing a name that causes them anguish.
The law bans discussing gender identity and sexual orientation broadly: it does not explicitly call out queer identities, meaning its ban also extends to heterosexual and cisgender identities. But in practice, it has chilled speech about LGBTQ+ identities alone, like how teachers have stopped discussing books by queer authors or with queer characters to avoid retribution.
Klosterboer said the law’s vagueness about how to implement this provision has led to censoring certain viewpoints and breaches students’ First Amendment rights to receive information about LGBTQ topics.
SB 12 also prohibits clubs based on gender identity and sexual orientation, which the plaintiffs say violates students’ right to gather based on the content of these meetings.
As defense for Texas Education Agency Commissioner Mike Morath, Attorney General Ken Paxton argues that laws need not offer “perfect clarity and precise guidance,” and that SB 12 “is surely valid ‘in the vast majority of its intended applications.’”
The defense rejects the First Amendment claim, saying it doesn’t protect speech by school districts or their employees. They also argue the law bans all sex-based clubs, not just LGBTQ-related ones, asserting such clubs conflict with educational priorities, though students may still meet off campus.
The plaintiffs say the club ban would likely only affect students supporting the LGBTQ+ community, since there are no equivalent sex-based clubs for cisgender or heterosexual students.
What similar lawsuits can indicate
A similar suit over Florida Don’t Say Gay law could offer insight into how Texas’ case will conclude, but the Texas law goes further.
Texas’ SB 12 applies Florida’s limits on classroom discussions of gender identity and sexual orientation to all K-12 grades. But unlike Florida, which allowed gender-affirming names and pronouns, Texas bars faculty from assisting students in socially transitioning — including using names or pronouns that differ from their biological sex.
A Florida judge dismissed the case for lack of standing, and the parties later settled, indicating a potential outcome of the Texas suit.
The settlement left the law in place but clarified that GSAs are permitted and that faculty may discuss gender identity and sexual orientation outside formal lessons. It also required the law to be enforced evenhandedly, meaning the restrictions on teaching about gender identity and sexual orientation must apply equally to LGBTQ+ and non-LGBTQ+ topics, for example, to both homosexual and heterosexual book characters.
Florida Gov. Ron DeSantis called the outcome a “major win” for upholding the law, while plaintiff Equality Florida said in a statement that the “agreement successfully dismantles the most harmful impacts of the law.” The settlement appeared to be in the parties’ best interest to end what was poised to become a long and costly battle, Jon Harris Maurer of Equality Florida told The Texas Tribune.
Experts say Texas’ case is expected to last years, and the state might settle to avoid extending the battle.
In Texas as in Florida, the court will likely find some provisions of SB 12 invalid for overbreadth, Hudson said. He said SB 12 “prohibits a substantial amount of speech that ought to be protected.”
A federal ruling over the summer also portends threats to the DEI ban in SB 12, after a Maryland judge rejected the U.S. Education Department’s threat to pull funding over DEI practices at public schools, ruling that the directive placed viewpoint-based restrictions on classroom speech and was unclear what kind of DEI initiatives were prohibited.
It remains unclear whether SB 12 limits safe-space posters and student art about LGBTQ+ themes, informal student clubs and whether faculty can use preferred names and pronouns with parental consent.
Some conservative experts contend that SB 12 is clear, particularly regarding the bar on teachers from encouraging transition-related expressions of gender.
“I don't know if you can come up with one definition that would completely capture all the expressions, but I think most everybody knows exactly what that provision is talking about,” said Matt Krause of First Liberty, a legal organization dedicated to religious rights.
He said the “heart” of SB 12 is to strengthen parental rights by ensuring that social transitioning doesn’t occur without parental approval and by allowing parents to shield their children from content the government deems unfavorable.
Both sides are expected to appeal, eventually landing the case before the nation’s most conservative federal appeals court, the Fifth Circuit.
This article first appeared on The Texas Tribune.
