State Proposals Limit Sexual Orientation, Gender Identity Training at Public Colleges

• Florida's "Don't Say Gay" law bans classroom instruction on sexual orientation and gender identity.
• Lawmakers advancing similar bills are adding language extending restrictions to public colleges.
• Proposals in Indiana and Kentucky include language impacting diversity and inclusion training at public institutions.

As Florida's controversial "Don't Say Gay" bill inspired copycat legislation in statehouses across the country this winter, some politicians sought to extend restrictions to training and counseling at public colleges.

While these bills didn't pass during these states' respective legislative sessions, experts say their language could portend future efforts to extend similar laws to higher education.

Florida's Parental Rights in Education law has been dubbed the "Don't Say Gay" law because it prohibits classroom instruction on sexual orientation and gender identity for students in kindergarten through third grade. Republican Gov. Ron DeSantis signed the bill into law at the end of March.

Most of the copycat legislation proposed elsewhere during winter legislative sessions also aimed to regulate sexual orientation and gender identity topics in K-12 classrooms. However, proposed bills in Indiana and Kentucky included an additional layer that could impact how diversity and inclusion training at higher education institutions address gender and sexual orientation.

Both bills — SB 415 in Indiana and HB 14 and 18 in Kentucky — contain language that would regulate public colleges and universities:

"No student enrolled at a public postsecondary education institution shall be required to engage in any form of mandatory gender or sexual diversity training or counseling."

This language essentially prohibits diversity and inclusion training that touches on LGBTQ+ issues, topics that are common during new-student orientations. While the Indiana bill explicitly states that voluntary training is still allowed, the Kentucky proposal does not make this clarification.

Indiana's legislative session wrapped up on March 8 with Senate Bill 415 stuck in committee. However, State Sen. J.D. Ford told Indianapollis's ABC affiliate that lobbying efforts are already under way to garner support for a similar bill in the 2023 session.

Kentucky's HB 14 declares "the racist indoctrination of children" in the state's schools to be an emergency, but the general assembly adjourned April 14 with the bill awaiting committee assignment. Its fate remains up in the air as its sponsor, Rep. Joseph Fischer, runs for a seat on the state Supreme Court.

Vague Language Maximizes Chilling Effect

Jeremy Young, senior manager of free expression and education at free speech advocacy group PEN America, told BestColleges that "Don't Say Gay" bills rely on a conservative definition of "age appropriateness," so they don't regulate classroom subjects in higher education like they do in K-12. Instead, conservatives have opted to regulate training, or occasionally, mandatory lectures or courses.

"These are anti-gay bills but not 'Don't Say Gay' bills, if that makes sense. All of them are bad, but they are of somewhat different character and structure," Young said. "We have not seen anything we would describe as a 'Don't Say Gay' bill at the college level."

Both the Indiana and Kentucky bills also state that "any orientation or requirement that presents any form of race or sex stereotyping or a bias on the basis of race or sex is prohibited."

Young suggested this wording is intentionally vague.

"These laws are written to maximize the chilling effect," he said, "so that they suggest a wide variety of things should be illegal while leaving interpretation and enforcement up to others."

His interpretation is that this part of the proposal forbids trainers from saying people of a certain race, gender, or sexual orientation are superior to others, he said. However, a likely outcome is that discussing topics related to discrimination based on race, gender, or sexual orientation will be banned in training.

If any of these bills, or a future proposal with similar language, were to pass, they would likely be adjudicated in the courts for a clearer interpretation, Young added.

Another topic of the latest culture war that has seeped into higher education is "divisive topics" bills centered around critical race theory (CRT) discourse. While originally focused on K-12 classrooms, there has been a steady increase in the proportion of these laws targeting colleges and universities.

Higher education stakeholders have almost unanimously opposed these restrictions on coursework and academic freedom.