DeSantis’ anti-LGBTQ laws run afoul of 1st Amendment, attorneys say

by John Ferrannini

Attorneys are questioning the constitutionality of some of the anti-LGBTQ laws signed by Republican Florida Governor Ron DeSantis just before he launched his campaign for the GOP presidential nomination.

Michael Trung Nguyen, a gay man and attorney in San Francisco who is the current board chair of the GLBTQ+ Asian Pacific Alliance, or GAPA, also performs in drag as Juicy Liu. Nguyen told the Bay Area Reporter that in his opinion, laws targeting drag performances or limiting discussion of homosexuality in schools aren’t being passed in order to withstand constitutional scrutiny. The First Amendment to the U.S. Constitution gives the country one of the world’s strongest protections for free expression.

“The laws are on our side,” Nguyen said. “Drag is not a crime. Drag is an art form.”

DeSantis launched his campaign May 24 with Twitter CEO Elon Musk in a glitch-filled talk on Twitter Spaces. He currently trails former President Donald Trump in the fight for the GOP nomination, 56%-25%, according to the latest Quinnipiac poll.

DeSantis has said he wants to “make America Florida” as he touts his record, which includes a six-week abortion ban, a ban on COVID vaccine and mask mandates, blocking an African American study program, and a new immigration law penalizing businesses if they’re found to be violating a number of mandates.

The presidential candidate has had an eye toward the queer community in particular, however. Last year, he shepherded the “Don’t Say Gay” legislation into law, banning discussion of homosexuality or gender identity in schools through the third grade.

The DeSantis administration has subsequently gone after several venues for hosting drag performances, as the B.A.R. previously reported; banned gender-affirming care for trans youth; and extended the “Don’t Say Gay” rule through the 12th grade.

Most recently, DeSantis signed a slate of bills making the Sunshine State – home of Key West,

Orlando, and Miami Beach – perhaps the most restrictive for LGBTQ people in the nation. These include a license to discriminate in health care; criminal penalties for gender-affirming care for trans youth; a bathroom bill that requires people to use facilities in public buildings in accordance with their sex assigned at birth; statutory expansion of Don’t Say Gay; forbidding of public funds for gender-affirming care for people of any age; and an “adult live performances” law that’s even more stringent than one passed in Tennessee earlier this year. (That law doesn’t specifically mention drag but drag artists are wary of it.)

Anti-drag bills similar

Luke Boso, a professor at the University of San Francisco School of Law, included a question on the constitutional implications of the Tennessee drag ban on the final exam of his constitutional law class in May.

“I used Tennessee’s version of their drag ban and asked them what First Amendment implications there were,” Boso said. “Florida’s ban is pretty similar to Tennessee’s but it’s a little more specific in the way it defines ‘adult live performance’ than what Tennessee’s does by focusing more on depictions of nudity, sexual conduct and sexual activities, and it specifically is trying to work its way into established Supreme Court precedent on obscenity law in a way that Tennessee’s doesn’t necessarily do.”

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California lawmakers have advanced many LGBTQ-related bills ahead of a June 3 deadline for passing out of their house of origin.

by Matthew S. Bajko

More than a dozen LGBTQ-related bills have already passed out of their house of origin in the California Legislature, with several more waiting for floor votes prior to the June 3 deadline for lawmakers in the two chambers to pass them.

One bill already moving on that has garnered national attention this session would scrap the state’s ban on using taxpayer money for travel to 23 states that have passed anti-LGBTQ legislation over the last eight years. San Francisco officials already have repealed their city’s similar travel restriction policy.

Arguing such travel bans have not had the desired effect of stopping attacks in other states on LGBTQ rights, and instead hamper California officials and leaders from making the case for such issues via out-of-state travel, lesbian state Senate President pro Tempore Toni G. Atkins (D-San Diego) introduced this year Senate Bill 447.

It is called the BRIDGE Act, using an acronym for Building and Reinforcing Inclusive, Diverse, Gender-Supportive Equality. It would repeal the travel ban policy and replace it with a marketing program supportive of LGBTQ rights in conservative-led states. Atkins’ bill doesn’t allocate any funding, though, for such ad campaigns.

The Senate passed SB 447 31-8 on May 24. It now heads to the Assembly, where the initial author in 2015 of the travel ban policy, gay Assemblymember Evan Low (D-Cupertino), has expressed qualified support for Atkins’ legislation.

Atkins hailed its moving forward by noting “hundreds of discriminatory, anti-LGBTQ+ bills have been introduced this year alone – it’s unprecedented, and my heart hurts for all of the folks in other states where this is happening. The folks who feel alone and isolated. This bill is about reaching out to them with messages of support and understanding, and at the same time, helping open hearts and minds so that acceptance, instead of animosity, wins the day.”

Many of the 21 LGBTQ bills the Bay Area Reporter is tracking this legislative session build on LGBTQ laws previously enacted by state lawmakers that focused on issues impacting public

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