Cracking the Facade: Analyzing Ohio's "Don't Say Gay" Legislation as Disguised Discrimination Under the First and Fourteenth Amendments.

Abstract

The Ohio State Legislature is among the growing nationwide trend in attacking LGBTQ+ rights. Chief among these is Ohio House Bill 8, which claims to limit the types of content children encounter in schools. While the drafters cite this noble intent, the bill's actual impact further harms queer students and teachers, who already bear heavier mental health burdens due to such legislation and its societal implications. This type of legislation recently originated in Florida, where it was signed into law by Governor Ron DeSantis in 2022 and garnered national media attention. As Ohio Governor Mike DeWine signed a near-identical bill in January 2025, the outcomes observed in Florida inform the constitutional analyses for the Ohio constituency. As in Florida, Ohio's bill is left intentionally vague, banning "gender ideology" and "sexual concepts" in classrooms or constraining them to what is deemed age-appropriate without providing sufficient guidelines for what may be acceptable. The disparate impact of this legislation is rooted entirely in gender classifications, triggering intermediate scrutiny. The bill's ambiguity creates a chilling effect on students' First Amendment rights by restricting the ability to express gender non-conformity without the school disclosing such changes to their families, disregarding the child's safety, and limiting the type of instruction children may receive in the classroom. Consequently, this compels schools to treat LGBTQ+ students and age-appropriate content differently from their heteronormative counterparts, inherently relegating those with queer identities as second-class citizens under the Fourteenth Amendment's Equal Protection and Substantive Due Process clauses.