“Don’t Say Gay”: Florida’s Suppression of LGBTQ+ Identities Under the Guise of Parental Empowerment

(Excerpt) Part I of this Note first discusses the legislative and judicial history of Title VII of the Civil Rights Act of 1964 (“Title VII”) and Title IX. Primary attention is directed toward the interplay between the statutes, their similarities, and the theories pursuant to which discrimination may be established under each. Next, this Part discusses the historical debate over the scope of “sex” discrimination under Title VII and Title IX. Then, this Part examines the landmark Supreme Court case Bostock v. Clayton County’s substantial impact on the judicial interpretation of “sex” under Title VII and Title IX. Lastly, Part I concludes with a series of executive interpretations of Title IX and a discussion concerning the role these interpretations play in determining actionable sex-based discrimination nationwide. Part II of this Note examines the DSG Law’s legislative history, with particular attention directed toward the law’s legislative intent. Next, this Part summarizes the arguments of the Law’s proponents, highlighting the Law’s purported legitimate aims of empowering parents in education and protecting children from exposure to inappropriate sex-based classroom instruction and “indoctrination.” Finally, Part II concludes with a discussion of the Law’s opponents’ views, primarily focusing on the Law’s alleged facilitation of discrimination and sanctioned suppression of protected groups based on sex. Part III of this Note argues the DSG Law violates Title IX because it impermissibly discriminates on the basis of sex under both disparate treatment and disparate impact theories. First, Section III.A discusses the rationale for employing Bostock’s expansive interpretation of sex-based discrimination under Title VII to claims under Title IX, arguing that because discrimination based on sexual orientation and gender identity violates Title VII, it likewise violates Title IX. Then, Section III.B explains sex-based discrimination under Title IX using a disparate treatment theory and argues that the DSG Law disparately treats similarly situated students on the basis of sex. Lastly, Section III.C discusses sex-based discrimination under Title IX using a disparate impact theory and argues that the Law disparately impacts similarly situated students and teachers on the basis of sex. Part IV’s proposed solution to remedy facilitation of sex-based discrimination in schools is to amend Title IX to add sexual orientation and gender identity as explicitly protected categories within the statute. Part IV argues that Title IX must be amended for three primary reasons: (1) to prevent clashing interpretations of Title IX dependent upon which presidential administration currently controls; (2) to ensure uniformity in judicial interpretation of sex-based discrimination claims under Title IX; and (3) to validate the identities of and to conclusively establish substantive federal anti-discrimination protection for LGBTQ+ individuals in schools by preempting state laws like Florida’s DSG Law.