Tattletale laws: Florida and Texas are trying to get the public to be their culture warriors

New state policies are weaponizing citizens against each other.

A law in Florida, signed on Monday by Republican Gov. Ron DeSantis, would allow parents to sue a school for teaching young students about sexual orientation or gender identity. A state-run tip line in Virginia asks parents to call in if their schools are using “divisive practices.” In Tennessee, a bill would mandate that schools tell parents if their child was not following gender norms.

All of this comes after the Texas State Legislature passed a law last year allowing anyone to sue those who aid abortions. The novel idea, to use citizens themselves to enforce a law that might otherwise be deemed unconstitutional by preventing government enforcement, opened a floodgate of new tattletale laws. Under the new proposals, doctors, lawyers and school principals — not to mention neighbors and coworkers — are all becoming active (and sometimes unwitting) participants in political fights.

Though the strategy has been employed by conservative lawmakers in Trump-friendly states, more liberal states are also taking note. Democratic Gov. Gavin Newsom of California is proposing using the same private lawsuit strategy employed in Texas to crack down on assault weapons in California.

This year, bills that either have new reporting requirements or encourage private lawsuits have been introduced in at least 20 states across the country, according to an analysis by Grid. Their strategies echo other kinds of citizen vigilante-ism like the #MeToo movement, where women publicly named men who sexually assaulted them.

If not halted by the court system, the approach — particularly, the “private lawsuit” strategy used by S.B. 8 to sue those who aid in obtaining abortions after six weeks — could easily be harnessed for other issues, warned Marc Hearron, senior counsel for the Center for Reproductive Rights, which led the legal challenge against the Texas law.

“This strategy is dangerous not only for reproductive rights, but in all different manners. To attack any right protected by the constitution, a state can just say, ‘Well, we’re not enforcing a prohibition on the exercise of that right, we’re just allowing private citizens to do so,’” Hearron said.

Increasingly, his concerns are shared by activists across the political spectrum. In the S.B. 8 case, a gun rights group filed an amicus brief arguing people’s constitutional rights are being threatened by the law.

“The most useful way to appreciate the significance of this case is to stop thinking of it as an abortion case and recognize it for what it is: a challenge to a broadly applicable tactic for avoiding federal judicial review of state efforts to circumvent the rights of its residents,” the pro-gun Firearms Policy Coalition wrote. “A private bounty scheme could easily be modified to target persons who criticize the government, refuse to wear masks or get vaccinated, make negligent or harmless false statements on public issues or engage in any other protected but disfavored conduct.”

Texas led on tattletale laws

Texas has recently pioneered two aggressive social policies, S.B. 8 and an order signed by Republican Gov. Greg Abbott that requires people to report any families providing gender-affirming treatment (like hormone therapy or puberty-blocking medications) for transgender children to social services.

Abbott’s order — which is currently on hold after a Texas judge issued an injunction — quickly had a chilling effect on medical services for transgender and nonbinary children.

“It’s an extreme mess, because one of the problems is that if somebody has had these puberty blockers or hormone replacements started, stopping them immediately is problematic,” said Ian Pittman, a Texas lawyer who represents families with LGBTQ children. “Those doctors are being put in a situation of, ‘Do I run the risk of being sued for following this law by a patient who says I’m harming him or her?’”

Since everyone in Texas is a mandatory reporter, Pittman himself is supposed to report the families with transgender children he represents to social services or risk losing his license. He has not been following the order because he believes the legal reasoning behind it is unsound.

“Beyond the obvious harm of permanently sterilizing a child, these procedures and treatments can cause side effects and harms beyond permanent infertility, including serious mental health effects” and a range of health consequences, Paxton wrote.

When the Supreme Court let S.B. 8, go into effect, it effectively encouraged such policies, said Melissa Murray, law professor at New York University.

“S.B. 8′s mechanism is now incredibly attractive for use in a number of issues, in part because the Supreme Court has allowed it to stay in place,” Murray said. “Until the court says otherwise, it’s constitutionally effective.” Part of the confusion over S.B. 8 is that it isn’t clear who is enforcing the law, making it difficult to bring legal challenges against it.

Anti-abortion and anti-LGBTQ rights bills proliferating in conservative states represent an attempt by lawmakers to shield the state from changing social norms — like an acceptance of abortion and transgender rights — that have been adopted by much of the country, said Murray.

“As social mores and norms change around particular kinds of conduct, whether it’s same-sex marriage or abortion, the public law reflects in many ways those changing norms,” Murray said. “But there are still people who object, and if they don’t find a place for their objection in the public sphere, they may rely on what I call privatization mechanisms.” After the Supreme Court’s 1954 Brown v. Board of Education decision, for example, all-white private schools cropped up across the south to serve families who opposed desegregation.

Reporting on a teacher’s choices can come from anyone — and that’s the point

DeSantis signed a bill on Monday — deemed “Don’t Say Gay” by some critics — that barred Florida schools from teaching about sexual orientation or gender identity in kindergarten through third-grade classrooms, or in older classrooms if those subjects are taught in a way that isn’t “age appropriate or developmentally appropriate.” Parents are allowed to sue schools over violations.

Florida Republicans have framed the bill as a reinforcement of parents’ rights to teach children about sexuality.

“In Florida, we not only know that parents have a right to be involved, we insist that parents have a right to be involved,” DeSantis said on Monday.

Teachers have decried the law, which they say is too vague in its language and will have a chilling effect in classrooms. One union leader called it “an attack on educators.”

“We’re asking for folks to send us reports and observations that they have that will help us be aware of things like privilege bingo, be aware of their child being denied their rights that parents have in Virginia. And we’re going to make sure we catalog it all,” Youngkin said while announcing the decision. The governor’s office has not said what it will do with the information.

Virginia superintendents unanimously asked for Youngkin to get rid of the tip line in a letter.

“The premise on which the tip line was established was to ensure that divisiveness was not taught to children,” said Ben Kaiser, executive director of the Virginia Association of School Superintendents. “Yet this act alone has created divisiveness.”