“Harmful to Children” Claims and the Targeting of LGBTQ Speech After Free Speech Coalition v. Paxton

See, e.g., Ark. Code Ann. §§ 20-9-1501 to -1504 (2025); N.C. Gen. Stat. § 90-21.151 (2025).

See, e.g., Ala. Code § 16-1-52 (2025); W. Va. Code § 18-2-25d (2025).

See, e.g., Ala. Code § 16-1-54 (2025); Fla. Stat. § 553.865 (2025).

See, e.g., Fla. Stat. § 1006.28(2)(a) (2025); Iowa Code § 279.77(2) (2025). On the use of book-removal laws to target LGBTQ speech, see infra notes 96-103 and accompanying text.

See, e.g., Fla. Stat. § 1001.42(8)(c)(3) (2025); Iowa Code § 279.80(2) (2025). On the use of “Don’t Say Gay” laws to target LGBTQ speech, see infra notes 83-87 and accompanying text.

See, e.g., Mont. Code Ann. §§ 45-8-117 to -118 (2025); Tenn. Code Ann. § 39-17-901 (2025). On the use of anti-drag laws to target LGBTQ speech, see infra notes 92-95 and 120-130 and accompanying text.

605 U.S. 495 (2025).

Id. at 505-06.

Id. at 511-18.

Id. at 507 (citing Tenn. Code Ann. § 68-33-103(b)(1)(A)).

Id. at 521-22.

606 U.S. 461 (2025).

Id. at 467.

Id. at 477-78.

Id. at 482-83.

Skrmetti did not answer the question of whether gender-identity classifications merit intermediate scrutiny under the Equal Protection Clause. Skrmetti, 605 U.S. at 517-18. Skrmetti also does not stand for the proposition that laws which negatively impact transgender individuals should never be understood to classify on the basis of sex and, thus, can never be subject to heightened scrutiny on that ground. Furthermore, Skrmetti does not bar challenges to anti-transgender laws grounded in impermissible animus. For the argument that the recent slew of anti-transgender laws enacted by state legislatures are the product of animus in violation of the Equal Protection Clause, see generally Scott Skinner-Thompson, Trans Animus, 65 B.C. L. Rev. 965 (2024).

As of this Essay’s writing, the Court is considering two challenges to laws banning transgender girls and women from participating in school-sponsored athletic competitions that are limited to females. Little v. Hecox, 145 S. Ct. 2871, 2871 (2025) (mem.) (granting certiorari); West Virginia v. B.P.J., No. 24-43, 2025 WL 1829164, at *1 (U.S. July 3, 2025) (mem.) (granting certiorari).

In the name of protecting children from harm, the statute at issue in Skrmetti criminalizes the provision of medically approved treatments to transgender minors in ways that affirm their gender identity while authorizing the same treatments to cisgender minors in ways that affirm their gender identity. See Tenn. Code Ann. §§ 68-33-102(1), -103(b)(1)(A) (2025) (allowing hormonal treatments to address an “abnormality present in a minor that is inconsistent with the normal development of a human being of the minor’s sex”).

Tex. Civ. Prac. & Rem. Code Ann. § 129B.002(a) (West 2024).

413 U.S. 15, 24 (1973). Under Miller, speech is obscene if “‘the average person, applying contemporary community standards[,]’ would find that the work, taken as a whole, appeals to the prurient interest”; “the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law”; and “the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.” Id. (citations omitted).

Tex. Civ. Prac. & Rem. Code Ann. § 129B.001(6) (West 2024).

Free Speech Coal., Inc. v. Paxton, 606 U.S. 461, 473 (2025).

Id. at 474 (citations omitted).

Tex. Civ. Prac. & Rem. Code Ann. § 129B.002(a) (West 2024). The covered websites may choose which age-verification methods to use and are permitted to rely on government-issued IDs. Id. § 129B.003(b). The statute authorizes the state attorney general to seek injunctive relief and civil penalties of up to $10,000 for each day that a covered website fails to have adequate age-verification methods in place. Id. § 129B.006(b). It also authorizes a civil penalty of up to $250,000 for each instance in which a minor is able to access “sexual material harmful to minors.” Id.

Free Speech Coal., 606 U.S. at 468. A group of companies operating sexually explicit websites and “a pornography performer” also joined the lawsuit. Id. The district court issued a preliminary injunction after concluding that the challengers were likely to prevail because strict scrutiny was the required standard of review for a content-based law. Free Speech Coal., Inc. v. Colmenero, 689 F. Supp. 3d 373, 391 (W.D. Tex. 2023). The U.S. Court of Appeals for the Fifth Circuit vacated the injunction, accepting the state’s argument that the statute was subject only to rational-basis review because “regulations of the distribution to minors of materials obscene for minors are subject only to [such] review.” Free Speech Coal., Inc. v. Paxton, 95 F.4th 263, 269 (5th Cir. 2024), aff’d on other grounds, 606 U.S. 461 (2025) (citations omitted). The Supreme Court granted certiorari to answer the following question: “Whether the court of appeals erred as a matter of law in applying rational-basis review to a law burdening adults’ access to protected speech, instead of strict scrutiny as this Court and other circuits have consistently done.” Petition for Writ of Certiorari at i, Free Speech Coal., 606 U.S. 461 (No. 23-1122).

Free Speech Coal., 606 U.S. at 492.

Id. at 471 (internal quotation and citation omitted).

Id. at 485-89.

See Ashcroft v. ACLU, 542 U.S. 656, 665 (2004); United States v. Playboy Ent. Grp., Inc., 529 U.S. 803, 814 (2000); Reno v. ACLU, 521 U.S. 844, 870-71, 879 (1997); Sable Commc’ns of Cal., Inc. v. FCC, 492 U.S. 126, 129 (1989).

Free Speech Coal., 606 U.S. at 489.

Id. at 478.

Id. (quoting Boy Scouts of Am. v. Dale, 530 U.S. 640, 659 (2000)).

Id. at 492.

Reno, 521 U.S. at 860-61; Ashcroft, 542 U.S. at 662.

Free Speech Coal., 606 U.S. at 517-18 (Kagan, J., dissenting) (noting that the laws at issue in Reno and Ashcroft were similar to H.B. 1181 because they were content-based regulations that burdened protected speech without banning it).

Id.

Id. at 513-16. To explain why the Court believed that H.B. 1181’s impact on speech was incidental, Justice Thomas analogized the Texas law to the federal statute prohibiting the destruction of draft cards upheld in United States v. O’Brien, 391 U.S. 367 (1968). O’Brien concluded that the federal law’s effect on expression was incidental to its main purpose of effectively administering the draft and that the law was therefore subject only to intermediate scrutiny. 391 U.S. at 376-77. Similarly, Justice Thomas reasoned, H.B. 1181’s purpose is not to burden adults’ access to constitutionally protected materials; instead, its objective is to protect minors from accessing speech that is obscene for them. Free Speech Coal., 606 U.S. at 481-82. Justice Kagan rejected the majority’s analogy to O’Brien, reasoning that the federal statute in that case regulated conduct while H.B. 1181 regulates protected speech. As she put it, “H.B. 1181 . . . is not a regulation of conduct that just so happens, on occasion, to impinge on expressive activity. It is instead a direct regulation of speech, triggered by the amount of sexually explicit expression on a commercial website.” Id. at 516 (Kagan, J., dissenting).

See Ashutosh Bhagwat, The Test That Ate Everything: Intermediate Scrutiny in First Amendment Jurisprudence, 2007 U. Ill. L. Rev. 783, 787 (stating that “rational basis review plays an extremely limited role in free speech cases”). The rational-basis test may be the appropriate standard to apply when assessing regulations of unprotected speech. It would presumably violate the Free Speech Clause, for example, if the government regulates so arbitrarily that it only prohibits individuals whose last name starts with the letter A or B from distributing constitutionally unprotected obscene materials.

Some federal appellate courts have held that rational-basis review is the appropriate standard for assessing free-speech challenges to regulations of professional conduct that have an incidental effect on speech. See Chiles v. Salazar, 116 F.4th 1178, 1209 (10th Cir. 2024), cert. granted, 145 S. Ct. 1328 (2025); Tingley v. Ferguson, 47 F.4th 1055, 1077-78 (9th Cir. 2022). These cases involve challenges to bans on so-called “therapies” that seek to change a minor’s sexual orientation or gender identity. As of this Essay’s writing, the Supreme Court is considering the constitutionality of a “conversion therapy” ban under the Free Speech Clause. Brief on the Merits for Respondents at 1, Chiles v. Salazar, 145 S. Ct. 1328 (Aug. 19, 2025) (No. 24-539). Such a ban, like H.B. 1181, seeks to protect children from harm. It will be interesting to see whether the Court in Chiles is as deferential to the government’s claims that the law under constitutional challenge protects children from harm as it was in Free Speech Coalition and Skrmetti.

Justice Thomas rejected the applicability of rational-basis review for two reasons. First, “[a]dults have the right to access speech that is obscene only to minors,” Free Speech Coal., 606 U.S. at 482, and second, submitting to age-verification processes burdens the exercise of that right, id. at 483. Texas argued that the Court’s ruling in Ginsberg v. New York, 390 U.S. 629 (1968), required the application of rational-basis review to H.B. 1181. Free Speech Coal., 606 U.S. at 494 (citing Ginsberg, 390 U.S. at 641). Ginsberg upheld a statute requiring stores selling sexually explicit publications to verify that the buyers are adults. 390 U.S. at 641-43. But Justice Thomas, in rejecting the applicability of rational-basis review, noted that at the time the Court decided Ginsberg, there were only two available standards of review: strict scrutiny and rational-basis review. Free Speech Coal., 606 U.S. at 495. He added that “[i]n a two-tiered framework, where the only options were strict scrutiny and rational-basis review, the latter was the better standard for an age-verification requirement.” Id.

The Court uses the same “intermediate scrutiny” label to categorize the level of judicial review required in equality-based challenges to regulations that classify on the basis of sex. See, e.g., Clark v. Jeter, 486 U.S. 456, 461 (1988). But “intermediate scrutiny” under the Equal Protection Clause is significantly more rigorous than “intermediate scrutiny” under the Free Speech Clause. See Bhagwat, supra note 37, at 827 (distinguishing “the relatively deferential form of intermediate scrutiny that is applied to First Amendment claims” from that applied “to equal protection claims”). Among other things, the Court has made it clear that “[p]arties who seek to defend gender-based government action must demonstrate an ‘exceedingly persuasive justification’ for that action.” United States v. Virginia, 518 U.S. 515, 531 (1996). In addition, the Justices “have explained that sex ‘generally provides no sensible ground for differential treatment.’” United States v. Skrmetti, 605 U.S. 495, 510 (2025) (quoting Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 440 (1985)).

In an analysis conducted in 2007 of over 100 federal appellate-court free-speech decisions applying intermediate scrutiny, Professor Bhagwat found that “the government tended to win.” Bhagwat, supra note 37, at 809. Bhagwat noted that “the constitutionality of the government action was sustained in 81 of the 111 cases, with only 30 free speech victories (put differently, the government won 73%, or almost three-quarters, of the time).” Id. For a recent example of a transgender-related law that survived intermediate scrutiny under the First Amendment, see Brandt v. Griffin, 147 F.4th 867, 890 (8th Cir. 2025), where the court sustained a law prohibiting healthcare practitioners from referring minors to other practitioners for gender-affirming care.

See, e.g., Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 298 (1984) (upholding under intermediate scrutiny the decision of the National Park Service to prohibit demonstrators from sleeping overnight in a park across from the White House); O’Brien, 391 U.S. at 380-82 (upholding under intermediate scrutiny the application of a law prohibiting the destruction of draft cards to those who burned them to protest the Vietnam War).

See, e.g., Ward v. Rock Against Racism, 491 U.S. 781, 791-803 (1989) (upholding a city regulation under intermediate scrutiny requiring performers in a city-owned bandshell to use sound-amplification equipment and a sound technician provided by the city); see also Frisby v. Schultz, 487 U.S. 474, 479-89 (1988) (upholding an ordinance prohibiting picketing “before or about” any residence).

Free Speech Coal., 606 U.S. at 485 (“The only principled way to give due consideration to both the First Amendment and States’ legitimate interests in protecting minors is to employ a less exacting standard [than strict scrutiny].”).

Id. at 478 (citing Ginsberg v. New York, 390 U.S. 629, 641 (1968)); see also id. (“[W]here the Constitution reserves a power to the States, it also reserves ‘the ordinary and appropriate means’ of exercising that power.”) (quoting 1 Joseph Story, Commentaries on the Constitution of the United States § 430, at 412-13 (Bos., Hilliard, Gray & Co., Cambridge, Brown, Shattuck & Co. 1833))).

See id. at 501 (Kagan, J., dissenting) (explaining that “[p]arts [of the majority opinion] suggest that the First Amendment plays no role here—that because Texas’s law works through age verification mandates, the First Amendment is beside the point,” but that “even the majority eventually gives up that ghost”).

See id. at 495 (majority opinion) (noting that intermediate scrutiny under the Free Speech Clause is “deferential but not toothless”).

Id. at 496 (quoting TikTok Inc. v. Garland, 604 U.S. 56, 76 (2025)). The Court also reasoned that the law is appropriately tailored even if it regulates certain online sites and not others, “such as search engines and social-media websites, where children are likely to find sexually explicit content.” Id. at 498. As Justice Thomas explained, “‘the First Amendment imposes no freestanding underinclusiveness limitation,’ and Texas ‘need not address all aspects of a problem in one fell swoop.’” Id. (quoting TikTok, 604 U.S. at 76).

Free Speech Coalition’s refusal to give any constitutional weight to H.B. 1181’s underinclusivity further illustrates how intermediate scrutiny under the Free Speech Clause differs from such scrutiny under the Equal Protection Clause. See supra note 39. Underinclusivity under the equality provision is constitutionally suspect because it suggests that the challenged regulation is not substantially related to the attainment of the government’s end. See, e.g., Craig v. Boren, 429 U.S. 190, 204 (1976); Weinberger v. Weisenfeld, 420 U.S. 636, 648-49 (1975). But, in Free Speech Coalition, the Court gave the government significant leeway to address harms one at a time without having to choose between addressing all similar harms simultaneously or none at all. 606 U.S. at 496-97. This type of relaxed judicial review sounds more in rational basis than it does in heightened scrutiny. See, e.g., Ry. Express Agency, Inc. v. New York, 336 U.S. 106, 110 (1949) (concluding, after applying a highly relaxed standard of review under the Equal Protection Clause to an economic regulation, that “[i]t is no requirement of equal protection that all evils of the same genus be eradicated or none at all”).

Justice Thomas noted that adults are used to having to prove their age to obtain a wide variety of goods and services, including alcohol, tattoos, fireworks, and handguns. Free Speech Coal., 606 U.S. at 479. He also pointed out that age-verification requirements were already in place for in-store purchases of sexually explicit materials; the Texas statute, therefore, did nothing more than update those requirements for “the digital age.” Id. at 496. Finally, he noted that “much of the online pornography industry has used analogous [age-verification] methods for decades.” Id. at 497. All of this meant that the state’s choice to require proof of age to access sexually explicit materials on websites with a high proportion of such content “is well within the State’s discretion under intermediate scrutiny.” Id.

In contrast, Justice Kagan believed H.B. 1181 worked as a deterrent to accessing constitutionally protected speech and therefore had a chilling effect. Id. at 504 (Kagan, J., dissenting). She also criticized the majority for reasoning “backwards” by beginning with an assessment of the legitimacy and reasonableness of age-verification laws and then expressing concern that a more demanding form of judicial review than intermediate scrutiny “‘would call’ those schemes ‘into question.’” Id. at 510 (quoting id. at 483 (majority opinion)).

Clifford J. Rosky, Fear of the Queer Child, 61 Buff. L. Rev. 607, 631-32 (2013).

Carlos A. Ball, From the Closet to the Courtroom: Five LGBT Lawsuits That Have Changed Our Nation 105 (2010).

Id. The Court struck down the constitutional amendment under the Equal Protection Clause in Romer v. Evans, 517 U.S 620, 635-36 (1996).

Lynn D. Wardle, The Potential Impact of Homosexual Parenting on Children, 1997 U. Ill. L. Rev. 833, 894.

Id. at 865-66 (footnote omitted). As Janice Farrell Pea and I argued almost thirty years ago,

[t]he vast majority of child molestation acts in this country, including those perpetrated on boys, are perpetrated by heterosexual men. What does this fact tell us about a heterosexual male litigant who is fighting for the custody of his children or for generous visitation privileges, or who seeks to adopt a child? Absolutely nothing. Under Wardle’s curious reasoning, however, when it comes to gays and lesbians, the fact that some of them might abuse children, no matter how few (and no matter that statistically they are much less likely to do so than heterosexual men), means that all are potentially suspect when they seek to retain custody of their children or to adopt.

Carlos A. Ball & Janice Farrell Pea, Warring with Wardle: Morality, Social Science, and Gay and Lesbian Parenting, 1998 U. Ill. L. Rev. 253, 307-08 (emphasis omitted) (footnotes omitted).

Professor William N. Eskridge, Jr. notes that “[f]or most of the twentieth century, laws or social norms stigmatizing gay people were justified on the ground that gay people do disgusting things or are diseased or predatory.” William N. Eskridge, Jr., No Promo Homo: The Sedimentation of Antigay Discourse and the Channeling Effect of Judicial Review, 75 N.Y.U. L. Rev. 1327, 1328-29 (2000). “Since the 1960s, these justifications have been supplemented with arguments that pro-gay changes in law or norms would encourage homosexuality or homosexual conduct.” Id. at 1329. Professor Eskridge makes clear, however, that “the old arguments do not disappear; they remain as foundational layers over which new arguments intellectually sediment.” Id. at 1331. The updating of anti-LGBTQ arguments, Eskridge points out, “allows modern tropes to mingle with ancient ones.” Id. at 1338.

Rosky, supra note 49, at 609. Professor Rosky explains that in addition to spreading the fear of indoctrination, LGBTQ-rights opponents also repeatedly articulated a “role modeling fear . . . that children will learn to imitate queerness by identifying with influential LGBT adults, such as parents and teachers.” Id.

Id. at 645.

Id. at 609. Professor Rosky explains how allegations of “indoctrination” gained popularity among conservatives after Anita Bryant’s organization—with the not-very-subtle name of “Save Our Children”—relied heavily on such allegations to persuade voters in Dade County, Florida, in 1977 to overturn an ordinance prohibiting sexual-orientation discrimination. Id. at 644-45. As Rosky notes, Bryant’s campaign “mark[ed] the moment in which the opposition’s new fear of indoctrination was nationalized and popularized. In the years that followed, this rhetoric gradually displaced the fear of seduction as a primary justification for anti-LGBT policies.” Id. at 645.

Id. at 647-48.

Id. at 648-49.

Id. at 649-50.

Id. at 651-54.

Id. at 656-57.

See Courtney G. Joslin, Searching for Harm: Same-Sex Marriage and the Well-Being of Children, 46 Harv. C.R.-C.L. L. Rev. 81, 82 (2011) (“[W]hile children have remained front and center in the arguments against same-sex marriage, the particular proffered interests have continued to mutate.”).

Carlos A. Ball, Same-Sex Marriage and Children: A Tale of History, Social Science, and Law 7 (2014).

For a detailed exploration and criticism of family-optimality defenses to same-sex marriage bans, see id. at 69-82.

Id. at 48-54.

See id. at 37-68 (providing a detailed exploration and criticism of responsible-procreation claims).

See id.

Obergefell v. Hodges, 576 U.S. 644, 679 (2015) (quoting Kitchen v. Herbert, 755 F.3d 1193, 1223 (10th Cir. 2014)).

Id. (“The respondents have not shown a foundation for the conclusion that allowing same-sex marriage will cause the harmful outcomes they describe.”).

Id. at 668.

Laquitta Walker & Danielle Taylor, Same-Sex Couple Households: 2019, U.S. Census Bureau 2 tbl.1 (Feb. 23, 2021), https://www.census.gov/library/publications/2021/acs/acsbr-005.html [https://perma.cc/YYE8-QEUF] (estimating that there were more than 550,000 married same-sex couples in the United States in 2019).

For example, the conservative Heritage Foundation issued a report in 2021 objecting to the enactment of the Equality Act, a federal law that would prohibit discrimination on the basis of sexual orientation and gender identity, on the ground that it would harm children. Nicole Russell & Emilie Kao, How the Equality Act’s Gender Ideology Would Harm Children, Heritage Found. (June 9, 2021), https://www.heritage.org/gender/report/how-the-equality-acts-gender-ideology-would-harm-children [https://perma.cc/D5V2-VJUW]. The report focuses almost exclusively on the ways in which the authors believe that the bill’s “gender ideology,” as it relates to transgender individuals, would harm children if enacted into law. See id.

See infra notes 76-79 and accompanying text. For the tracking of anti-transgender bills and laws, see 2025 Anti-Trans Bills Tracker, Trans Leg. Tracker (2025), https://translegislation.com [https://perma.cc/Q9YP-P2V5].

See, e.g., Brief of Amici Curiae American Academy of Pediatrics and Additional National and State Medical and Mental Health Organizations in Support of Petitioner and Respondents in Support of Petitioner at 8, United States v. Skrmetti, 605 U.S. 495 (2025) (No. 23-477) (“The widely accepted view of the professional medical community is that gender-affirming care is the appropriate treatment for gender dysphoria and that, for some adolescents, puberty blockers and hormone therapy are necessary.”).

See, e.g., Proclamation No. 10911, 90 Fed. Reg. 15203, 15203 (Apr. 9, 2025) (“Proponents of the gender ideology movement are outrageously indoctrinating our children with the devastating lie that they are trapped in the wrong body—and that the only way they can be truly happy is to alter their sex with hormone therapy, puberty blockers, and sexual mutilation surgery. The evil and backwards lies of gender insanity are robbing our children of their happiness, health, and freedom, while imposing unimaginable heartbreak on parents and families.”); Matt Sharp, We Must Protect Minors from Gender Transition Procedures, All. Defending Freedom (June 7, 2024), https://adflegal.org/article/we-must-protect-minors-gender-transition-procedures [https://perma.cc/3ZRM-AX8E] (noting, in defending transgender-healthcare bans for minors, that “[f]or a state lawmaker, protecting citizens’ health and safety is an important duty” and that “[t]his responsibility is even more significant when it comes to protecting vulnerable children”).

For example, Idaho enacted a law in 2023 requiring public-school students to use bathrooms that match their “biological sex” with the purpose of prohibiting transgender students from using bathrooms that correspond to their gender identity. Idaho Code § 33-6703 (2025). According to the statutory text, “[r]equiring students to share restrooms and changing facilities with members of the opposite biological sex generates potential embarrassment, shame, and psychological injury to students, as well as increas[es] the likelihood of sexual assault, molestation, rape, voyeurism, and exhibitionism.” Id. § 33-6701(4); see also Ky. Rev. Stat. Ann. § 158.189(2) (2023) (“The General Assembly finds that . . . [a]llowing students to use restrooms, locker rooms, or shower rooms that are reserved for students of a different biological sex . . . [w]ill create potential embarrassment, shame, and psychological injury to students.”).

See, e.g., Amira Hasenbush, Andrew R. Flores & Jody L. Herman, Gender Identity Nondiscrimination Laws in Public Accommodations: A Review of Evidence Regarding Safety and Privacy in Public Restrooms, Locker Rooms, and Changing Rooms, 16 Sexuality Rsch. & Soc. Pol’y 70, 78 (2018) (“[W]e found no evidence that privacy and safety in public restrooms change as a result of [gender-inclusive public-accommodation nondiscrimination ordinances].”); Jody L. Herman, Andrew R. Flores & Elana Redfield, Safety and Privacy in Public Restrooms and Other Gendered Facilities, Williams Inst. (Feb. 2025), https://williamsinstitute.law.ucla.edu/publications/safety-in-restrooms-and-facilites [https://perma.cc/M42W-W56E] (“There is no evidence that allowing transgender people access to bathrooms aligning with their gender identity jeopardizes safety and privacy.”). The evidence shows that it is transgender students who are at risk of being harmed psychologically and physically when excluded from bathrooms that match their gender identity. See, e.g., Jonah P. DeChants, Myeshia N. Price, Ronita Nath, Steven Hobaica & Amy E. Green, Transgender and Nonbinary Young People’s Bathroom Avoidance and Mental Health, 26 Int’l J. Transgender Health 351, 355 (2024) (“Only 28% of transgender and nonbinary young people reported never experiencing any health issues from avoiding bathrooms.”); Myeshia Price-Feeney, Amy E. Green & Samuel H. Dorison, Impact of Bathroom Discrimination on Mental Health Among Transgender and Nonbinary Youth, 68 J. Adolescent Health 1142, 1145 (2021) (“The present study found that [transgender and/or nonbinary] youths who reported bathroom discrimination experienced significantly higher rates of depressive mood, seriously considering suicide, attempted suicide, and multiple suicide attempts experienced in the past year than [transgender and/or nonbinary] youths not exposed to this specific form of discrimination.”).

See, e.g., Exec. Order No. 14,201, 90 Fed. Reg. 9279, 9279 (Feb. 5, 2025) (“[I]t is the policy of the United States to rescind all funds from educational programs that deprive women and girls of fair athletic opportunities, which results in the endangerment, humiliation, and silencing of women and girls and deprives them of privacy.”); Tom Joyce, Transgender Athletes Pose a Safety Threat to Girls, Wash. Exam’r (Feb. 20, 2024), https://www.washingtonexaminer.com/opinion/beltway-confidential/2864813/transgender-athletes-pose-safety-threat-to-girls [https://perma.cc/S8DA-PYSY] (“When males play sports against women and girls, not only do they have an athletic advantage, but they also pose a safety threat in many cases.”).

The President of the National College Athletic Association (NCAA) estimated in 2024 that there were fewer than ten transgender athletes among the more than 510,000 student athletes who participate in NCAA competitions. Brooke Migdon, NCAA President Says There Are “Less than 10” Transgender Athletes in College Sports, Hill (Dec. 18, 2024), https://thehill.com/homenews/lgbtq/5046662-ncaa-president-transgender-athletes-college-sports [https://perma.cc/Y7U4-UJKU].

See D.J. Oberlin, Sex Differences and Athletic Performance: Where Do Trans Individuals Fit into Sports and Athletics Based on Current Research, 5 Frontiers Sports & Active Living 1, 7-8 (2023) (noting the broad range of differences in athletic performance within the category of cisgender men and within that of cisgender women).

See, e.g., Parker v. Hurley, 514 F.3d 87, 90 (1st Cir. 2008) (challenging a school board’s decision to use curricular material intended to encourage respect for LGBTQ individuals).

Governor Ron DeSantis Signs Historic Bill to Protect Parental Rights in Education, Exec. Off. Governor (Mar. 28, 2022), https://www.flgov.com/eog/news/press/2022/governor-ron-desantis-signs-historic-bill-protect-parental-rights-education [https://perma.cc/8EK7-R6W6].

Laurel Duggan, ‘Stop the Sexualization of Children’: Texas Moves to Ban Lessons on Gender Ideology, Sexual Orientation in Schools, Daily Caller (Jan. 13, 2023, 2:03 PM), https://dailycaller.com/2023/01/13/stop-the-sexualization-of-children-texas-moves-to-ban-lessons-on-gender-ideology-sexual-orientation-in-schools [https://perma.cc/LRU3-FLTB].

Ark. Code Ann. § 6-16-157(c) (2025).

Ohio Rev. Code Ann. § 3313.473(G)(5) (West 2025) (emphasis added).

Id. Professor Scott Skinner-Thompson notes that anti-transgender advocates have claimed “that the existence of transgender people will lead to the inculcation of a particular ‘gender ideology’” resulting in “people [being] ‘groomed,’ ‘recruited,’ or ‘sexualized’ to be transgender by transgender ‘predators.’” Scott Skinner-Thompson, Law’s Gender Ideology 1-2 (Univ. of Colo. L. Legal Stud. Rsch. Paper No. 25-24, 2025) (footnotes omitted), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=5406122 [https://perma.cc/RY58-C4LH]. He adds that “[t]his dangerous rhetoric is particularly acute when dealing with children, students, and schools.” Skinner-Thompson, supra, at 2-3 (footnotes omitted).

H.R. 9197, 117th Cong. (2022).

Id. § 3(2).

Id. § 4(e)(1) (emphasis added).

Id.

To Classify a Drag Performance as an Adult-Oriented Business: Hearing on S.B. 43 Before the S. City, Cnty. & Loc. Affs. Comm., 94th Gen. Ass., at 10:43:20 AM (Ark. 2023) (statement of Sen. Gary Stubblefield), https://sg001-harmony.sliq.net/00284/harmony/en/PowerBrowser/PowerBrowserV2/20160329/-1/26404?mediaStartTime=20230119104245 [https://perma.cc/LP2G-7S57].

Ark. House Representatives, Meeting in House—February 6, 2023, at 2:50:07 PM (Feb. 6, 2023), https://sg001-harmony.sliq.net/00284/harmony/en/PowerBrowser/PowerBrowserV2/20160329/-1/26494?mediaStartTime=20230206145005 [https://perma.cc/M89J-BZL6].

Id. at 2:51:20 PM.

Imperial Sovereign Ct. v. Knudsen, 699 F. Supp. 3d 1018, 1039 (D. Mont. 2023).

Restricting Explicit and Adult-Designated Educational Resources Act, ch. 808, 2023 Tex. Gen. Laws 2538 (West 2023) (codified at Tex. Educ. Code § 33.021(d)(2)(A)). The U.S. Court of Appeals for the Fifth Circuit has held that the statute likely violates the First Amendment rights of book sellers. Book People, Inc. v. Wong, 91 F.4th 318, 339-40 (5th Cir. 2024).

Mandy Drogin & Michael Barba, Texas Lawmakers Passed Laws to Protect Children, Now We Must Implement Them Effectively, Tex. Pub. Pol’y Found. (Dec. 11, 2023), https://www.texaspolicy.com/texaslawmakerspassedlawstoprtectchildren [https://perma.cc/D6TZ-YNX4].

See, e.g., Fla. Stat. § 1001.42(8)(c)(3) (2025) (“Classroom instruction by school personnel or third parties on sexual orientation or gender identity may not occur in prekindergarten through grade 8 . . . . If such instruction is provided in grades 9 through 12, the instruction must be age-appropriate or developmentally appropriate for students in accordance with state standards.”).

See, for example, the statutes cited supra note 96 and infra notes 100 and 103.

Mo. Ann. Stat. § 573.550(1) (West 2025).

Claudette Riley, Nearly 300 Books Targeted, Banned in MO Schools Since New State Law Took Effect in August, Springfield News-Leader (Nov. 20, 2022, 11:57 AM CT), https://www.news-leader.com/story/news/education/2022/11/16/nearly-300-books-targeted-in-missouri-schools-since-new-law-in-august/69654367007 [https://perma.cc/JSP8-XQN5].

Kate Grumke, School Librarian Recalls “Surreal” Police Visits Over Books Months Before New Missouri Law, St. Louis Pub. Radio (Sep. 22, 2022), https://www.stlpr.org/education/2022-09-22/school-librarian-recalls-surreal-police-visits-over-books-months-before-new-missouri-law [https://perma.cc/C3BE-PYJC]. The year after the Missouri law went into effect, the Secretary of State issued a rule that “among other things requires libraries to post information about their collections online and create a process for citizens to challenge materials or events that are available to children. Libraries will also have to obtain permission from parents before granting materials or access to minors.” Meg Cunningham, Missouri Libraries Dodge GOP Funding Strike—for Now, Beacon News (Apr. 21, 2023), https://thebeaconnews.org/stories/2023/04/21/missouri-library-funding [https://perma.cc/WUK5-MUDG]. “The rule also requires libraries to publish their book selection process and the steps parents can take to challenge those choices. Additionally, if a library violates any provision of the rule, the state will rescind its funding.” Jane Wiertel, News Analysis: Illinois Protects Library Books; Missouri Removes Them, Pulitzer Ctr. (Sep. 14, 2023), https://pulitzercenter.org/stories/news-analysis-illinois-protects-library-books-missouri-removes-them [https://perma.cc/32FB-NAWT].

See supra notes 101-102 and accompanying text. Similarly, the Utah legislature in 2022 enacted a law prohibiting “sensitive material” in schools, which is defined as “pornographic or indecent material.” Utah Code Ann. § 53G-10-103(1)(e) (West 2025). Like the Missouri statute, the Utah provision is facially neutral as to LGBTQ content and themes. Yet, when a Utah school district, shortly after the statute’s enactment, relied on the new law to remove thirty-nine books, eighteen (46%) of them “feature[d] LGBTQ+ characters.” Banned in the USA: State Laws Supercharge Book Suppression in Schools, PEN Am. (Apr. 20, 2023), https://pen.org/report/banned-in-the-usa-state-laws-supercharge-book-suppression-in-schools [https://perma.cc/X9H5-BFZM]. The number of books targeted for removal in Utah’s public schools increased from twelve the year before the measure went into effect to 281 the year after. Madison Markham & Samantha LaFrance, The State of Book Bans: Utah’s “No Read List,” PEN Am. (Aug. 22, 2024), https://pen.org/the-state-of-book-bans-utahs-no-read-list [https://perma.cc/4ZJ2-GYT9].

In 2024, the Utah legislature amended the statute to make it even easier to challenge and remove instructional materials, including but not limited to books. Under the new provision, any public-school employee, student, parent, or member of the governing board “may initiate a sensitive material review.” Utah Code Ann. § 53G-10-103(3)(a) (West 2025). In addition, under the amended provision, a book that is banned for containing “objective sensitive material” at three school districts (or two districts plus five charter schools) will be subject to removal across the other thirty-nine districts and every charter school, affecting over 670,000 public-school students. In other words, when less than ten percent of districts deem a book “objective sensitive material,” the law makes it illegal for all public schools to stock it. Idaho, South Carolina, and Tennessee have enacted similar laws. Samantha LaFrance, Local No Longer: 4 New Laws and Policies Bring Book Banning to the State Level, PEN Am. (July 29, 2024), https://pen.org/local-no-longer-4-new-laws-and-policies-bring-book-banning-to-the-state-level [https://perma.cc/LL8D-R3YP].

For an examination of the free-speech issues raised by the targeted removal of books from public-school libraries, see generally Catherine J. Ross, Are “Book Bans” Unconstitutional? Reflections on Public School Libraries and the Limits of Law, 76 Stan. L. Rev. 1675 (2024).

See, e.g., Madeline Tyner, CCBC 2017 Statistics on LGBTQ+ Literature for Children & Teens, Coop. Child.’s Book Ctr., Univ. Wis.-Madison (Apr. 6, 2018), https://ccbc.education.wisc.edu/ccbc-2017-statistics-on-lgbtq-literature-for-children-teens [https://perma.cc/KD9L-CZ5D] (reporting that 3.68% of the books for children and teenagers received by a children’s book center at the University of Wisconsin had “significant LGBTQ+ content”).

Hannah Natanson, Objection to Sexual, LGBTQ Content Propels Spike in Book Challenges, Wash. Post (June 9, 2023), https://www.washingtonpost.com/education/2023/05/23/lgbtq-book-ban-challengers [https://perma.cc/X7V2-ED3A].

Id. The American Library Association reported that in 2024, four of the top ten books most frequently challenged in public libraries and schools had LGBTQ themes. Top 10 Most Challenged Books of 2024, Am. Libr. Ass’n. (2025), https://www.ala.org/bbooks/frequentlychallengedbooks/top10 [https://perma.cc/5KKK-6G95]. In 2023, the American Library Association reported that seven out of the ten most challenged books had LGBTQ themes. Daniel Arkin, More than Half of 2023’s Most Challenged Books Have LGBTQ Themes, NBC News (Apr. 8, 2024), https://www.nbcnews.com/nbc-out/out-news/banned-books-lgbtq-library-association-rcna146236 [https://perma.cc/H953-KABY].

Banned in the USA: State Laws Supercharge Book Suppression in Schools, supra note 103.

Banned in the USA: The Growing Movement to Censor Books in Schools, PEN Am. (Sep. 19, 2022), https://pen.org/report/banned-usa-growing-movement-to-censor-books-in-schools [https://perma.cc/3WB2-5WUC].

There are many reported instances of public-school officials specifically targeting books with LGBTQ content for censorship. For example, in 2022, a school superintendent in Texas called on school librarians in his district to remove “books with LGBTQ themes, even if they do not describe sex.” Mike Hixenbaugh & Jeremy Schwartz, Texas Superintendent Tells Librarians to Pull Books on Sexuality, Transgender People, NBC News (Mar. 23, 2022), https://www.nbcnews.com/news/us-news/texas-superintendent-librarians-books-sexuality-transgender-rcna20992 [https://perma.cc/76BF-2UL4]. As the superintendent put it, “[i]t’s the transgender, LGBTQ and the sex—sexuality—in books. That’s what the governor has said that he will prosecute people for, and that’s what we’re pulling out.” Id. School librarians, in response to their superior’s command, “pull[ed] about 130 titles from library shelves for review. Nearly three-quarters of the removed books featured LGBTQ characters or themes.” Id. A year later, a school board in Arkansas voted unanimously to “pull any books that deal in sexual orientation, sexual lifestyle or gender preference from the general shelves” of the elementary school’s library. Tess Vrbin, Law Limiting Access to LGBTQ Books in School Libraries Began with Rural Arkansas District, Ark. Advoc. (June 16, 2025, 5:00 AM), https://arkansasadvocate.com/2025/06/16/law-limiting-access-to-lgbtq-books-in-school-libraries-began-with-rural-arkansas-district [https://perma.cc/Y3LC-J8GC].

After some patrons of the Jamestown, Michigan public library complained in 2022 about the presence of the book Gender Queer on the open shelves, the staff moved it behind the librarian’s desk. Danielle Paquette, A Mich. Library Refused to Remove an LGBTQ Book. The Town Defunded It, Wash. Post (Aug. 24, 2022), https://www.washingtonpost.com/nation/2022/08/24/michigan-library-defunded-gender-queer [https://perma.cc/4VMB-ESHH]. Some community members subsequently accused staff members of being “groomer[s]” and promoting “LGBTQ ideology.” Id. Two of the librarians quit their jobs due to the harassment. Id. A few months later, town residents voted to defund the library altogether due to the presence of that one LGBTQ book. Id. Of the approximately 67,000 books held by the library, ninety of them had LGBTQ keywords. Id. As one of the librarians explained, most of the library’s funds went to purchase Christian fiction. Id.

For a critique of conflating books with LGBTQ themes with books that are sexually explicit, see generally Cathryn M. Oakley, Curriculum Censorship of LGBTQ+ Identity: Modern Adaptation of Vintage “Save Our Children” Rhetoric Is Still Just Discrimination, 54 Loy. U. Chi. L.J. 641 (2022).

The Supreme Court’s ruling in Mahmoud v. Taylor, 145 S. Ct. 2332 (2025),decided the same day as Free Speech Coalition, unfortunately further encourages school officials to target and remove books and other materials with LGBTQ themes and viewpoints. Mahmoud held that parents have a right under the Free Exercise Clause to be notified when schools intend to use books and other instructional materials containing perspectives that are inconsistent with the parents’ religious beliefs. Id. at 2364. The Court also held that parents have a constitutional right to have their children exempted from being instructed with such materials. Id. at 2364.

In his majority opinion, Justice Alito emphasized what he deemed to be the “unmistakably normative” nature of storybooks with LGBTQ characters and themes. Mahmoud, 145 S. Ct. at 2353. By contending that public schools’ use of books with LGBTQ content impermissibly burdens the free-exercise rights of parents who object to that content for religious reasons, Mahmoud incentivizes school officials to avoid using books and other instructional materials with LGBTQ content altogether. Doing so will spare school districts from the administrative burdens of determining which parents of which religions must be notified about which instructional materials. Id. at 2381, 2394 (Sotomayor, J., dissenting). Avoiding LGBTQ books and other materials will also lessen the expense, distraction, and publicity engendered by lawsuits challenging the curricular choices of public schools. Id. at 2395.

As of this Essay’s writing, states are already using Free Speech Coalition to defend statutes requiring parental consent for minors’ use of social media from First Amendment challenges. See, e.g., Appellee’s Brief at 3, NetChoice, LLC v. Skrmetti, No. 25-5660 (6th Cir. Oct. 3, 2025); Brief of Appellant Ohio Attorney General Dave Yost at 45-46, NetChoice, LLC v. Yost, No. 25-3371 (6th Cir. Aug. 19, 2025); Appellant’s Initial Brief at 17, 37, Computer & Commc’ns Indus. Ass’n v. Uthmeier, No. 25-1181 (11th Cir. Aug. 13, 2025).

See supra notes 43-46 and accompanying text.

David Cole, Umpires No More, N.Y. Rev. Books (Aug. 21, 2025), https://www.nybooks.com/articles/2025/08/21/umpires-no-more-supreme-court-david-cole [https://perma.cc/BZQ2-VQ7V].

As Justice Thomas has noted, “[g]overnment regulation of speech is content based if a law applies to particular speech because of the topic discussed or the idea or message expressed.” Reed v. Town of Gilbert, 576 U.S. 155, 163 (2015). There are two categories of content-based laws. The first group consists of laws regulating content on their face. Id. The second category consists “of laws that, though facially content neutral, . . . cannot be ‘justified without reference to the content of the regulated speech,’ or . . . were adopted by the government ‘because of disagreement with the message [the speech] conveys.’” Id. at 164 (quoting Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989)).

Free Speech Coal., Inc. v. Paxton, 606 U.S. 461, 478 (2025).

See supra notes 83-91 and accompanying text.

In response to Florida’s “Don’t Say Gay” law, some school districts removed books with LGBTQ themes, including the picture book And Tango Makes Three, which is about two male penguins raising a chick. Donald Padgett, Florida School District Bans Book on Gay Penguin Couple, Advocate (Jan. 10, 2023, 6:20 AM ET), https://www.advocate.com/news/2023/1/10/florida-school-district-bans-book-penguin-couple-dont-say-gay [https://perma.cc/GPC4-DKBW]. Cathryn M. Oakley notes that “[t]here are, of course, children’s books which discuss LGBTQ+ issues, including King & King, a picture book geared toward very early readers in which the prince falls in love not with a princess but instead another prince, whom he marries and together they live happily ever after.” Oakley, supra note 110, at 659. She adds that “[t]he simple truth is that there is nothing inherently offensive, mature, or inappropriate about a fairy tale in which the prince ultimately shares a chaste, storybook ending with another prince.” Id. at 659.

Texas v. Johnson, 491 U.S. 397, 414 (1989) (noting the “bedrock principle underlying the First Amendment” that government actors should not prohibit speech depending on the acceptability of the viewpoints expressed); see also Matal v. Tam, 582 U.S. 218, 248 (2017) (Kennedy, J., concurring) (“[T]he government may not punish or suppress speech based on disapproval of the ideas or perspectives the speech conveys.” (citing Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 828-29 (1995))).

See supra Section II.B.

See Mont. Code Ann. § 20-7-135(2) (2025) (“A school or library that receives any form of funding from the state may not allow a sexually oriented performance or drag story hour, as defined in 45-8-117, on its premises during regular operating hours or at any school-sanctioned extracurricular activity.”) (emphasis added); Tenn. Code Ann. § 7-51-1401(3) (2025) (defining “adult cabaret entertainment” as “adult-oriented performances” that meet the Miller standard for minors and that “feature topless dancers, go-go dancers, exotic dancers, strippers, male or female impersonators, or similar entertainers”) (emphasis added).

Tex. Health & Safety Code Ann § 769.002(a) (West 2025).

Tex. Penal Code Ann. § 43.28(b) (West 2025). The measure defines a “[s]exually oriented performance” as “a visual performance that: (A) features: (i) a performer who is nude . . . ; or (ii) any other performer who engages in sexual conduct; and (B) appeals to the prurient interest in sex.” Id. § 43.28(a)(2).

Woodlands Pride, Inc. v. Paxton, 694 F. Supp. 3d 820, 832 (S.D. Tex. 2023) (footnote omitted).

Id. (footnote omitted).

One commentator notes that while “[m]any drag opponents cite nudity in their objections [and] [e]very performer makes different choices, . . . drag queens often wear more, not less, clothing than you’d see on a typical American woman of the 21st century, at a public beach or on network TV.” Jeff McMillan, Analysis: Political Rhetoric, False Claims Obscure the History of Drag Performance, PBS News (Oct. 30, 2022, 9:30 AM), https://www.pbs.org/newshour/politics/political-rhetoric-false-claims-obscure-the-history-of-drag-performance [https://perma.cc/H9X2-S6EQ].

Free Speech Coalition acknowledged that the age-verification law burdened the ability of adults to access constitutionally protected speech as to them. Free Speech Coal., Inc. v. Paxton, 606 U.S. 461, 494 (2025). The same is clearly true of S.B. 12 because, in defining “sexually oriented performances,” it incorporates only the second of the three Miller factors, the one that requires that the sexual content appeal to the prurient interest. Tex. Penal Code Ann. § 43.28(a)(2)(B) (West 2025). This means, among other things, that performances that have serious artistic or political value, and are therefore constitutionally protected under Miller, could still be subject to prohibition. Id. § 43.28(a)(2)(B).

Tex. Health & Safety Code Ann. § 769.002(a) (West 2025); Tex. Civ. Prac. & Rem. Code Ann. § 129B.002(a) (West 2025).

Woodlands Pride, 694 F. Supp. 3d at 829.

Id. at 831. The original bill focused explicitly on “drag performances.” But, as the measure moved through the legislative process and critics raised questions about its validity under the First Amendment, its sponsors removed the “drag performances” language. George Christian, SB 12 Criminalizes Private, Non-Commercial “Sexually Oriented Performances”—Even in a Home, Tex. Civ. Just. League (June 20, 2023), https://tcjl.com/sb-12-criminalizes-private-non-commercial-sexually-oriented-performances-even-in-a-home [https://perma.cc/43B4-BHGN].

Although S.B. 12 makes no reference to drag performances, when the bill was introduced, the sponsor focused on the “recent cultural trend” of “drag shows . . . performed in venues generally accessible to the public, including children.” Woodlands Pride, 694 F. Supp. 3d at 831 (footnote omitted). Furthermore, when Governor Greg Abbott signed the bill into law, he left no possible ambiguity as to the statute’s purpose: “Texas Governor Signs Law Banning Drag Performances in Public. That’s Right.” Id. at 829 (footnote omitted).

The district court issued a preliminary injunction after concluding that strict scrutiny was appropriate because S.B.12 constitutes both a content-based and viewpoint-based regulation of speech. Id. at 844-47. For other rulings questioning the constitutionality of public-performance laws targeting drag shows, see, for example, HM Florida-ORL, LLC v. Governor of Florida, 137 F.4th 1207, 1236-45 (11th Cir. 2025); Imperial Sovereign Court v. Knudsen, 699 F. Supp. 3d 1018, 1036-45 (D. Mont. 2023); and Friends of Georges, Inc. v. Mulroy, 675 F. Supp. 3d 831, 861-65 (W.D. Tenn. 2023), rev’d on other grounds sub nom., Friends of George’s, Inc. v. Mulroy, 108 F.4th 431 (6th Cir. 2024). For an analysis of the unconstitutionality of anti-drag laws, see generally Mark Satta, Shantay Drag Stays: Anti-Drag Laws Violate the First Amendment, 25 Geo. J. Gender & L. 95 (2023), which explains why laws aimed at restricting, suppressing, or banning drag performances violate the First Amendment.

For other examples of facially neutral laws that could easily be used to target LGBTQ expression and materials, see Ark. Code Ann. § 5-27-212(b)(1) (2024) (making it a misdemeanor if a “person knowingly . . . [f]urnishes, presents, provides, makes available, gives, lends, shows, advertises, or distributes to a minor an item that is harmful to minors”); Fla. Stat. § 1006.28(2)(a)(2)(b) (2025) (requiring school districts to adopt policies allowing parents to object to instructional materials “made available in a school or classroom library” that “[d]epict[] or describe[] sexual conduct”). A federal district court concluded that the Arkansas statute is unconstitutionally overbroad and vague. Fayetteville Pub. Lib. v. Crawford County, 760 F. Supp. 3d 811, 823 (W.D. Ark. 2024). Another federal district court concluded that the Florida provision is overbroad. Penguin Random House LLC v. Gibson, No. 6:24-cv-1573, 2025 WL 2408178, at *15-17 (M.D. Fla. Aug. 13, 2025).

My focus in this Essay has been on the free-speech rights of adults because that was the question at issue in Free Speech Coalition. But minors also enjoy free-speech rights that limit the government’s authority to target LGBTQ expression and materials. For example, public-school students and a nonprofit organization called the GLBT Youth in Iowa Schools Task Force challenged an Iowa statute that, inter alia, requires the removal of materials from public-school libraries depicting “a sex act” and that prohibits providing programs or instruction “relating to gender identity or sexual orientation” to students in the sixth grade or below. GLBT Youth in Iowa Schs. Task Force v. Reynolds, 114 F.4th 660, 665-66 (8th Cir. 2024). The U.S. Court of Appeals for the Eighth Circuit concluded that the plaintiffs had standing to challenge the law. Id. at 667-69. In doing so, it rejected the state’s claim that its schools’ book-selection practices are government speech and therefore beyond the reach of the Free Speech Clause. Id. at 667-68. But see Little v. Llano County, 138 F.4th 834, 837 (5th Cir. 2025) (rejecting the argument, in a case challenging the removal of seventeen books from a public library, several of which had LGBTQ themes, that library patrons have a free-speech right to receive information).

Free Speech Coal., Inc. v. Paxton, 606 U.S. 461, 508-09 (2025) (Kagan, J., dissenting) (“Applying strict scrutiny in this context . . . need not be a death sentence. To the contrary, a State exercising care should be able to devise a regulatory means of achieving its objective consistent with the First Amendment.”).

Id. at 509-10.

See Ashcroft v. ACLU, 542 U.S. 656, 665 (2004); United States v. Playboy Ent. Grp., Inc., 529 U.S. 803, 814 (2000); Reno v. ACLU, 521 U.S. 844, 874 (1997); Sable Commc’ns of Cal., Inc. v. FCC, 492 U.S. 115, 129 (1989).

The lack of protection for LGBTQ speech in Hungary represents a stark example of what can happen when courts allow the government to use “harmful to children” claims to justify the censorship of LGBTQ expression and materials. Hungary in 2021 enacted a law, titled the Child Protection Act, banning the “promotion” of homosexuality or gender transitioning in any media that might be accessible by minors. Mathieu Pollet, Hungary’s Anti-LGBTQ+ Rules Breach EU Law, Top Court Advisor Says, Politico (June 5, 2025, 10:53 AM), https://www.politico.eu/article/hungary-anti-lgbtq-eu-law-court-children-viktor-orban-gender-sexuality-commission-pride [https://perma.cc/378C-LN2G]. Under the law, “[s]ame-sex couples and transgender people are banned from daytime TV and ads, while queer-themed books must be sealed and can’t be sold near schools and churches.” Id.

In 2025, the Hungarian Parliament amended the Child Protection Act to ban Pride events and authorize the police to use biometric cameras to identify organizers and attendees. Csongor Körömi, Orbán Bans Pride in Hungary as Polls Show Rival Surging, Politico (Mar. 18, 2025, 12:09 PM), https://www.politico.eu/article/orban-tries-to-ban-pride-hungary-appease-extremists-rivals-surge-polls [https://perma.cc/H973-UX53]; see also Sergey Katsuba, Putin’s Russia: First Arrests Under New Anti-LGBT Laws Mark New Era of Repression, Conversation (Apr. 8, 2024, 12:04 PM), https://theconversation.com/putins-russia-first-arrests-under-new-anti-lgbt-laws-mark-new-era-of-repression-226864 [https://perma.cc/M3ME-QREF] (explaining how the Russian government has used a law prohibiting so-called propaganda of homosexuality among minors to sanction, for example, the sharing of LGBTQ+ information on social media and the posting of photos showing two individuals of the same sex kissing); Odoi-Oywelowo v. Attorney General, [2024] UGCC 10, ¶ 416 (Uganda) (upholding the Anti-Homosexual Act of 2023’s prohibition against the “promotion of homosexuality” and noting that its purpose is to protect children from being “recruit[ed] . . . into the practice of homosexuality”).

See supra Section II.B.