Don’t Say Gay

The Government’s Silence and the Equal Protection Clause

This paper will argue that the LGBT movement has played, and will continue to play, a significant role in developing doctrines that subject government speech to the requirements of the Equal Protection Clause. In particular, the paper will examine how this doctrine is being developed in litigation around anti-LGBT curriculum laws—statutes that prohibit or restrict the discussion of LGBT people and topics in public schools.  It argues that this litigation demonstrates how the Equal Protection Clause can be violated by the government’s silence, as well as the government’s speech. In addition, it explains why the Don’t Say Gay Laws recently passed in Florida and Alabama are unconstitutional, for the same reasons as the anti-LGBT curriculum laws passed in earlier eras.

a. Professor of Law, University of Utah S.J. Quinney College of Law. I am grateful to Helen Norton, Shannon Minter, Noella Sudbury, and all of the participants in this symposium issue for providing helpful feedback on an early draft. In addition, I am grateful to Sarah Louise Duensing, Kaitlynn Morgann, Wesley Peebles, Christian Manual Silva, and the staff of the Illinois Law Review for outstanding research support.

The full text of this Symposium is available to download as a PDF.