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Book banning and anti-LGBTQ laws signed by Florida Governor Ron DeSantis

Updated: Jun 18, 2023

Some of these bills were made less egregious before they passed the full House and Senate so if you remember that they were a lot worse as they went thru committees, that's why. These laws are still horrible.


OVERVIEW OF NEW ANTI-LGBTQ LAWS IN FLORIDA

This is from Southern Legal Council:


💢 SB 254: Gender-Affirming Care Ban

Key points:

DOES NOT allow the state/DCF/child welfare, etc., to investigate or remove transgender children from supportive parents or parents who allow them to access gender-affirming care. *SB 254 DOES NOT allow any state intervention of any kind.

*The custody provision of SB 254 is ONLY applicable to existing out-of-state custody orders where the non-affirming parent brings the child to Florida and asks a court to take temporary emergency jurisdiction to modify the existing custody order to favor the non-affirming parent .

*PROHIBITS doctors from prescribing puberty blocking medications or hormones to minors for the treatment of gender dysphoria if the minor had not yet been prescribed such medication(s) prior to the effective date of the law (5/17/23).

*DOES ALLOW continuation of care for adolescents who were already receiving puberty blocking medications or hormones prior to the effective date (5/17/23), as it contains a "grandfathering in clause" that allows continuity of care (just like the recently promulgated Boards of Medicine rules)

*ALLOWS adults to continue on care and to obtain new prescriptions and surgeries as treatment for gender dysphoria as long as the informed consent process is followed by the physician (MD or DO);

If the initial time a medication was prescribed, the provider followed the informed consent process laid out by SB 254, the patient can continue to receive such care ("consent required under subsection (2) does not apply to renewals of prescriptions" as long as the physician "met the requirements for consent for the initial prescription or renewal")

*The forms required for the initial informed consent process for new medications or surgery for an adult will be adopted by the Boards of Medicine.

*PROHIBITS all non-physicians (MDs/DOs) from prescribing any treatment for gender dysphoria - meaning APRNs, PAs, NPs cannot prescribe gender-affirming care to minors or adults in Florida.

*DOES threaten healthcare providers who violate the above prohibitions/ requirements with penalties, including criminal and civil liability, but these penalties do not extend to parents seeking care for their children.

*DOES NOT prohibit anyone from changing their legal name or gender marker, I have gotten this question a lot lately - there was originally a provision that would have prohibited folks from amending the gender marker on their FL birth certificates but that did not pass. Right now, there are no restrictions on amending your legal name and/or gender marker on any and all identification documents.

NOTE: We have already challenged sections (3) through (7) of SB 254 in federal lawsuits (including amending Dekker v. Weida to include a challenge to section (3), the ban on state funding being used for gender-affirming care; and amending Doe v. Ladapo to include a challenge to sections 4-7, which ban the provision of care to minors who had not yet started treatment; the criminal and civil penalties/liabilities associated with the provision of gender-affirming care; requiring in-person informed consent for adults and minors; and banning non-physicians from prescribing treatment for gender dysphoria) (links to these pleadings above in section 1).

💢 HB 1521: Bathroom Ban

High level summary:

(A) Requires people to use the bathrooms and changing rooms aligned with their sex assigned at birth, but also requires all public facilities (including schools, colleges, detention facilities, and public buildings) to have a unisex (i.e. single user, gender-neutral) bathroom or changing room option;

(B) associated penalties are only enforceable if an employee of the facility asks you to leave and you refuse to do so.

Breakdown of provisions applicable across all sections:

APPLIES TO: bathrooms and changing facilities in correctional institutions and detention facilities (jails, including juvenile detention facilities), educational institutions (K-12 schools, colleges and universities), and public buildings (a building owned or leased by the state, a state agency, or a political subdivision).

"Changing facility" means a place where people may undress in front of each other, including dressing rooms, fitting rooms, locker rooms, changing rooms, and shower rooms.

"Restroom" means a room that includes one or more toilets or urinals.

DOES NOT APPLY TO:

Unisex restrooms (i.e. single user, all gender, non-gender bathrooms), which are defined as a bathroom "intended for a single occupant or a family, enclosed by floor-to-ceiling walls, and accessed by a full door with a lock that prevents others from entering while in use"

Unisex changing facilities (i.e. single user, all gender, non-gender changing facilities), which are defined as "a room intended for a single occupant or a family" where people may undress in front of each other, including dressing rooms, fitting rooms, locker rooms, changing rooms, and shower rooms that are "fully enclosed by floor-to-ceiling walls and accessed by a full door with a secure lock that prevents others from entering while changing facility is in use"

REQUIRES: that all entities (public places, schools, jails, etc.) must have a restroom designated for exclusive use by females, a restroom designated for exclusive use by males, and a unisex restroom (this means it's now mandatory that there is always a bathroom that is unisex and that anyone can use with privacy); same goes for public changing rooms (all entities, including public places and schools, that have changing facilities, must have one for males, one for females, and one unisex that anyone can use with privacy).

** NOTE: While this bill is awful and represents an egregious infringement upon the rights of transgender, gender-nonconforming and non-binary people, this requirement will result in more single-user, safe, private bathrooms and changing rooms being available, which is something that many facilities sorely lack. Often I have to fight with school districts, for example, to compel them to create single-user bathroom options for my transgender clients in middle and high school who do not feel comfortable using the "gang-style" male or female bathrooms at school. Sex-segregated bathrooms also often create major safety and privacy risks for individuals who are incarcerated. This bill requires all schools, jails, and public buildings to have "unisex" single-user bathrooms, changing facilities, showers, etc., which is actually a small silver lining.

PROHIBITS: willfully entering a bathroom or changing facility designated for the "opposite sex" (defining "sex" as a person's sex assigned at birth, as determined by "sex chromosomes, naturally occurring sex hormones, and internal and external genitalia present at birth") and refusing to leave after being asked to leave by an employee of the facility.

Note: a prior iteration allowed anyone to ask a person to leave if they thought that the person was in the "wrong bathroom" but the final version that was signed into law only allows employees of the building to ask the person to leave - see below for more detail defining employees for the different types of facilities.)

Exceptions to the prohibition on entering a bathroom/changing facility "designated for the opposite sex": to accompany a child under age 12 to the restroom, or to accompany an elderly person or person with disabilities into the restroom; if the facility aligned with sex assigned at birth is out of order and there is no one in the facility aligned with your gender identity at the time you need to use it; for custodial or maintenance purposes, or for law enforcement or governmental regulatory purposes; to render emergency medical assistance or intervene in an emergency situation where a person's health or safety are at risk.

K-12 Schools and Colleges/Universities (specific provisions):

How Applies to K-12 Students: Each K-12 educational institution shall establish within its code of conduct a disciplinary procedure for students who "willfully enter" restrooms or changing facilities designed for "the opposite sex" and "refuse to depart when asked to do so" by an instructional or administrative personnel or a safe-school officer;

** NOTE: There is no requirement that an instructional or administrative personnel (i.e. teacher or staff) must ask a student to leave or must prohibit a student from using bathroom aligned with their gender identity, meaning kids who are at affirming schools with affirming staff may not experience any changes or issues under this new law. The requirement is that the school has a "disciplinary procedure" in place for if a teacher/staff does ask a student to leave a bathroom that is not aligned with their sex assigned at birth and the student refuses to do so. Further, most schools don't have staff posted up outside every bathroom on school campus to police who enters each bathroom.

How Applies to College Students: Each postsecondary institution (colleges, universities) shall establish within code of conduct a disciplinary procedure for students who "willfully enter" restrooms or changing facilities designed for "the opposite sex" and "refuse to depart when asked to do so" by an administrative personnel, faculty member, security personnel, or law enforcement personnel.

** NOTE: Again, there is no requirement that an administrative personnel, faculty, security, or law enforcement must ask a student to leave or must prohibit a student from using the bathroom aligned with their gender identity. Also, most colleges/universities don't have staff members posted up outside of every bathroom on campus to police who enters each bathroom.

How Applies to K-12 Teachers/Staff: If K-12 teachers or administrative staff willfully enter restrooms or changing facilities designated for "the opposite sex" while at an educational institution and refuse to depart when asked to do so by another teacher or admin staff, they violate the Principles of Professional Conduct for the Education Profession and can be subjected to discipline.

How Applies to College Faculty/Staff: If university/college personnel willfully enter a bathroom or changing facility designated for "the opposite sex" while at an educational institution and refuse to depart when asked to do so by another staff member, they are subject to disciplinary actions established in State Board of Education rules or Board of Governors regulations.

These rules/regulations are to be created/adopted by January 1, 2024.

How Applies to Non-Students/Non-Teachers: Any non-student/non-teacher who willfully enters a bathroom or changing facility designated for "the opposite sex" while at an educational institution and refuses to depart when asked to do so by staff, teachers, or admin personnel can be charged with the offense of trespass (does not apply to students or staff of the educational institution). Trespass is a misdemeanor (Fla. Stat. 810.08).

NOTE: Reminder that none of these prohibitions in any context apply in the exceptions listed above:

(a) to accompany a child under age 12 to the restroom, or to accompany an elderly person or person with disabilities into the restroom; (b) if the facility aligned with sex assigned at birth is out of order and there is no one in the facility aligned with your gender identity at the time you need to use it; (c) for custodial or maintenance purposes, or for law enforcement or governmental regulatory purposes; or (d) to render emergency medical assistance or intervene in an emergency situation where a person's health or safety are at risk.

Timing of implementation: K-12 educational facilities and colleges/universities must submit documentation to the State Board of Education regarding "compliance with" the law... "no later than April 1, 2024."

Public Buildings (specific provisions):

How Applies to Employees of Public Buildings: For state buildings (owned or leased by the state, a state agency, or political subdivision), the applicable government entity for that building must establish disciplinary procedures for any employee of the government entity who willfully enters a restroom or changing facility designated for "the opposite sex" at such public building and refuses to depart when asked to do so by any other employee of the governmental entity.

No penalties exist yet, they are to be established by each governmental entity for each public building.

These rules/regulations are to be created/adopted by January 1, 2024.

How Applies to Patrons/Visitors/Patrons of Public Buildings: Any person who who willfully enters a restroom or changing facility designated for "the opposite sex" at a public building and refuses to depart when asked to do so by an employee of the governmental entity for the public building that is within the government entity's jurisdiction, commits the offense of trespass. Trespass is a misdemeanor (Fla. Stat. 810.08).

Note: most public buildings do not have an employee of the government entity that owns the building stationed outside of all bathrooms at all times policing who enters the restroom.

Correctional Institutions / Detention Facilities / Juvenile Correctional Facilities or Juvenile Prisons (specific provisions):

Applies to: any state correctional institution or private correctional facility; juvenile correctional institution or prison; any detention center or facility designated by the Department of Juvenile Justice to provide secure detention; any facility used for a residential program; any county detention facility or municipal detention facility.

How applies to incarcerated individuals (including juveniles): All correctional institutions and detention facilities must establish disciplinary procedures for any prisoner who "willfully enters" a restroom or changing facility designated for the opposite sex on the premises of the correctional institution/detention facility and refuses to depart when asked to do so by an employee of the Dept of Corrections or an employee of the institution/facility

How applies to employees of correctional institutions & detention facilities (including juvenile facilities): If an employee "willfully enters" a restroom of changing room designated for the opposite sex on the premises of the correctional institution/detention facility and refuses to depart when asked to do so by another employee of the facility/institution, they are subject to disciplinary action by the managing entity of the detention facility or Department of Corrections.

How applies to non-incarcerated individuals and non-employees (i.e. visitors of correctional institutions & detention facilities, including juvenile facilities): If a person who isn't a prisoner or employee of the correctional institution or detention facility "willfully enters" a restroom of changing room designated for the opposite sex on the premises of the institution/facility and refuses to depart when asked to do so by an employee of the correctional institution/ detention facility, they commit the offense of trespass. Trespass is a misdemeanor (Fla. Stat. 810.08).

Timing of implementation: Correctional institutions and detention facilities must submit documentation to the Dept of Corrections or applicable governing body of the facility re: compliance with these provisions no later than April 1, 2024.

Complaints to the Attorney General:

Beginning July 1, 2024, a person may submit a complaint to the Attorney General if a covered entity fails to meet the minimum requirements for restrooms and changing facilities (i.e. if every school, college/university, and public space does not have a gender-neutral/unisex / single-user restroom and changing room option, folks can file a complaint about it - this could be used to our benefit to ensure all LGBTQ+ folks or others who desire increased privacy while using the bathroom/changing room have access to a single-user bathroom that feels safe to them.)

💢 SB 1580: Medical Conscience Bill

ALLOWS health care providers and health care payors to "opt out of participation in or payment for" any health care service they have a "conscience-based objection" to based on their "sincerely held religious, moral, or ethical beliefs."

"Healthcare Payor" means any health insurer, employer, health are sharing organization, health plan, health maintenance organization, management services org, or any other entity that pays for or arranges for the payment of any health care service.

"Healthcare Provider" means any medical provider or entity licensed under the Florida Statutes governing physicians (MDs/DOs), mental health, nursing, chiropractic medicine, pharmacy, dentistry, optometry, naturopathy, podiatric medicine, midwifery, nursing homes and health facilities, speech-language pathology, occupational therapy, respiratory therapy, electrolysis, massage therapy, health testing services, physical therapy, psychological services or clinical counseling, hearing aid or optical devices, most health care providing facilities requiring licensure, etc., and any student enrolled in education institution seeking to become health care provider.

REQUIRES that the health care provider - at the time of the conscience-based objection - provide written notice of the objection to their supervisor or employer and document the objection to the particular health care service in the patients' medical file

The right of medical conscience is limited to conscience-based objections to a specific health care service. (Cannot broadly just refuse to provide care/treatment to a patient, the provider must explain the specific health care service they object to).

REQUIRES that before the patient schedules an appointment with the provider, the provider must notify the patient that they do not provide such health service.

PROHIBITS a health care provider or payor from opting out of providing health care services to any patient or potential patient because of that patient's or potential patient's race, color, religion, sex, or national origin.

PROHIBITS a health care payor from declining to pay for a health care service it is contractually obligated to cover during the plan year.

Protects health care providers and health care payors from "being discriminated against" or "suffering any adverse action" due to their conscience-based objections, protects them in whistleblowing on others who may violate this section, protects them in disclosing information to state agencies that constitutes a violation by someone else of any laws, rules, or ethical guidelines or a treatment that would put a patient at risk.

REQUIRES the provision of emergency medical treatment in accordance with state law or the Emergency Medical Treatment and Active Labor Act.

The conscience-based objection protections do not allow a health care provider to forego providing emergency medical treatment for any reason, including a sincerely held religious or conscience-based objection.

So if a health care provider had a conscience-based objection to the specific treatments that transgender people may receive, they can provide a written objection to prescribing puberty blockers, hormones, performing gender-affirming surgery, etc., but they cannot deny a transgender person, or anyone else, emergency medical treatment.

💢 HB 1069: Don't Say LGBTQ+ Expansion

How the new law expands beyond HB 1557:

REDEFINES "sex" for purposes of the Florida K-20 education code to mean male or female based on the "organization of the body of such person for a specific reproductive role, as indicated by the person's sex chromosomes, naturally occurring sex hormones, and internal and external genitalia present at birth."

PROHIBITS public K-12 schools from requiring their employees, contractors, or students to refer to another person using that person's preferred pronouns if the preferred pronouns don't align with the person's sex assigned at birth.

** NOTE: this has been misinterpreted to mean teachers are prohibited from using students' affirmed/preferred pronouns, and students are prohibited from using teachers' affirmed/preferred pronouns - this is not the case - rather the school cannot force teachers, staff or students to use other peoples' affirmed/preferred pronouns.

PROHIBITS employees or contractors of public K-12 schools from telling students their affirmed/preferred pronouns if they don't align with the person's sex assigned at birth.

PROHIBITS employees or contractors of public K-12 schools from asking students their preferred pronouns

EXPANDS the former HB 1557's prohibition on "classroom instruction on sexual orientation or gender identity" from K through 3 to pre-K through 8th grade. And requires such instruction in grades 9-12 to be "age-appropriate or developmentally appropriate" in accordance with state standards. This section now applies to charter schools.

Note: a recent rule promulgated by the Florida Board of Education extended this to K-12 and adopted rules that threaten to revoke the license of teachers who violate the law.

Note: despite HB 1557 going into effect July 1, 2022, there are still no definitions provided by the state for the vague and ambiguous terms used in the original iteration and this expansion - including the terms “classroom instruction,” “sexual orientation,” and “gender identity”

REQUIRES all materials used to teach reproductive health or any disease (HIV/AIDS, etc.) to be approved by the department (rather than the district school board).

REQUIRES all sexual education / health education to "classify males and females" according to new draconian and discriminatory definition of sex (see above) and requires teaching that "biological males impregnate biological females by fertilizing the female egg with male sperm" and then "the female gestates the offspring" and "these reproductive roles are binary, stable, and unchangeable." And requires Department of Education approve all materials used for instruction under this section.

EXPANDS language about oversight of and approval of all instructional materials to specifically include "classroom libraries" in addition to school libraries.

REQUIRES all district school boards to adopt policies regarding parents' or residents' objections to any material, including through an objection form created by the State Board of Education. Also includes that any parent or resident must have opportunity to proffer evidence to the district school board about any material that "depicts or describes sexual conduct" (expands from prior iteration which said material that was "pornographic"). Requires that any material subject to an objection that it describes or depicts sexual conduct must be removed within 5 school days of receipt of the objection and remain unavailable to students until objection is resolved.

EXPANDS use of special magistrate process - now allows any parent who disagrees with a determination made by the school district on an objection to specific material to request the Commissioner of Education to appoint a special magistrate; then the State Board of Education can approve or reject the recommendation of the special magistrate at its next meeting. The costs of the special magistrate process must be borne by the school district.

EXPANDS process for developing library media center collections and book selection to also include classroom libraries; and requires all elementary school teachers to post their classroom libraries online; and requires each district to adopt and publish on its website a process for a parent to limit their child's access to materials in the school or classroom library.

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