Florida Bill Could Harm LGBTQ+ Nonprofits in the State

In March of 2022, Florida launched into law House Bill 1557. Officially titled the Parental Rights in Education Bill, it has become known by some folks as the "Don't Say Gay" Bill. While one of the Bill's most dangerous amendments, which would require schools to "out" LGBTQ+ youth to their parents, was removed shortly before the Bill went to a vote, it still includes many provisions that could harm LGBTQ+ youth. For example, "according to the text of the statute, if a student is asked to draw a picture of their family and a child draws their two dads and shares their drawing with the class, a parent could sue the school if they feel there was an inappropriate discussion of sexual orientation or gender identity."

In late November 2023, Florida Representative Ryan Chamberlin introduced another bill, House Bill 599, that further targets the state's LGBTQ+ community. (In an interesting twist, Chamberlin's seat was previously held by Joe Harding, who authored HB 1557. Harding ended up being sentenced to time in prison after pleading guilty to several crimes such as money laundering and wire fraud, and then making false statements to investigators.) The new bill would restrict organizations from taking into consideration an individual's "gender identity or sexual orientation if they want to compete for state contracts or grants." The text of HB 599 states, "It is an unlawful employment practice for a nonprofit organization or an employer who receives funding from the state to require, as a condition of employment, any training, instruction, or other activity on sexual orientation, gender identity, or gender expression."

Obviously, this would harm organizations seeking funding for programs assisting the LGBTQ+ community, as their work involves activities related to gender identity and expression. According to Allejandra Caraballo, a Harvard law instructor, “It would effectively ban all LGBTQ nonprofits in the state. They would not be able to discuss sexual orientation or gender identity at all. This is horrifying.”

The Bill also features restrictions on government agencies, such as banning policies requiring the use of preferred pronouns. According to the Bill's language, it is "the policy of the state that a person's sex is an immutable biological trait and that it is false to ascribe to a person a pronoun that does not correspond to such person's sex."

Florida's state legislature resumes in January of 2024, and in a state that has already passed the previous "Don't Say Gay" bill, HB 599 has a definite possibility of becoming law. (Though some people wonder if Florida Governor Ron DeSantis would sign such an extreme bill in an election year, others think he may be on board in order to build support from his far-right base.) The ultimate ramifications and reach of the Bill are hard to predict. As Fast Company noted, "as is characteristic of many DeSantis-era bills, it’s vaguely written, and its scope is potentially much larger" than just limiting pronoun use in government agencies. The state has seen the real-world application of the previous legislation expanded well beyond its initial scope. Rolling Stone observed that the previous bill, HB 1557, "originally prohibited classroom instruction on issues of gender identity and sexual orientation in pre-K through the third grade. Its vague wording and broad application were later used by the DeSantis administration to expand many of the restrictions up through the 12th grade."

If HB 599 passes, nonprofit organizations could bring legal challenges to the law's constitutionality. However, such challenges can be costly and have unpredictable outcomes. What can nonprofits do in the meantime?

There are limits on how 501(c)(3) organizations can address politics. The Internal Revenue Code states that "all section 501(c)(3) organizations are absolutely prohibited from directly or indirectly participating in, or intervening in, any political campaign on behalf of (or in opposition to) any candidate for elective public office." Therefore, nonprofits cannot directly campaign against DeSantis, Chamberlin, or other members of the state legislature.

But the situation gets a bit murkier when talking not about people but about topics. For example, the Council of Nonprofits says that if a candidate for office approaches an organization for a speaking opportunity, that candidate cannot discuss the political campaign. But the organization may allow the event "if the candidate only talks about the charitable nonprofit and topics related to the mission."

While certain topics in our increasingly polarized society may seem political, sticking to the specific issue without reference to specific political actors will help your organization stay in compliance with IRS rules. Your organization can take a stance on the bills at issue, but your organization cannot take a stance on the authors of those bills. In addition, nonprofits can engage in voter and civic engagement activities, as long as the activities are nonpartisan. That is, you can tell folks to get out and vote, but you can't tell them who to vote for.

Think of it this way: A nonprofit assisting LGBTQ+ populations would obviously want Governor DeSantis to veto HB 599 if it comes across his desk. DeSantis is possibly anti-LGBTQ+, based on his signing of HB 1557. But a call for a specific policy, whether or not a politician supports that policy, is not an endorsement for or opposition to that politician. Again, the focus must remain on the topic, not the politicians working for or against that topic.

Beyond the nonprofit sector, the solution is partly to get out and vote. Issues like what is happening in Florida are not relegated to that corner of the country. According to the Washington Post, "legislatures in at least 19 states have passed or are considering laws that bar discussion of sexual orientation and gender identity for younger children while limiting teaching on those topics for older students." While many of these laws are presented by their proponents as reasonable—e.g., you can't teach sex acts to first graders—in actual usage, they are used to prevent any mention of or expression by certain communities. For example, a gay teacher might not be able to have a picture of his family on his desk. And as in Florida, those initial laws could work as stepping stones to policies that reach far beyond the school systems.

It will take a lot of effort by both organizations and individuals to make sure that those folks already marginalized by our society do not get hurt even more. When the government seeks to make it so that the reality of one's existence cannot even be spoken aloud, the rest of us must also speak up so that the silenced voices can be heard.