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2022 U. Ill. L. Rev. 1845 (2022)
Don't Say Gay: The Government's Silence and the Equal Protection Clause

handle is hein.journals/unilllr2022 and id is 1881 raw text is: DON'T SAY GAY: THE GOVERNMENT'S SILENCE AND THE EQUAL PROTECTION CLAUSE Clifford Rosky* This paper will argue that the LGBT movement has played, and will continue to play, a significant role in developing doctrines that subject gov- ernment speech to the requirements of the Equal Protection Clause. In par- ticular, the paper will examine how this doctrine is being developed in liti- gation around anti-LGBT curriculum laws-statutes that prohibit or restrict the discussion of LGBT people and topics in public schools. It ar- gues 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. TABLE OF CONTENTS I. ANTI-GAY CURRICULUM LAWS AS AN EXAMPLE OF THE GOVERNMENT'S SPEECH................................................................ 1846 II. ANTI-GAY CURRICULUM LAWS AS AN EXAMPLE OF THE GOVERNMENT'S SILENCE ................................................. ................ 1847 III. THE GOVERNMENT'S SILENCE AS A FORM OF DISCRIMINATION AGAINST LESBIAN, GAY, AND BISEXUAL PEOPLE .... 1849 IV. STATE ACTION: WHEN THE GOVERNMENT'S SILENCE VIOLATES THE EQUAL PROTECTION CLAUSE ....................................... 1851 V. FLORIDA AND ALABAMA: THE NEW DON'T SAY GAY LAWS............... 1852 VI. GOVERNMENT IDENTIFICATION DOCUMENTS: THE GOVERNMENT'S SILENCE AS A WAY TO DISCRIMINATE AGAINST TRANSGENDER PEOPLE ......................................................................... 1857 1845 * 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 feed- back on an early draft. In addition, I am grateful to Christian Manual Silva, Kaitlynn Morgann, and the staff of the Illinois Law Review for outstanding research support.

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