A Utah law banning the display of pride flags by publicly funded institutions and state employees is stoking controversy over whether the measure violates Constitutional free speech rights.

The law will take effect on May 7, following Republican state Rep. Trevor Lee’s push to pass HB 77, which bans the display of most flags by public school teachers and government entities. Under the Flag Display Amendments bill, flags celebrating the LGBT community are among those prohibited from public display on government property, or by public school personnel and other state employees acting within their duties. 

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Lee argues that the law seeks to restore political neutrality in public spaces. LGBT rights advocates say that the LGBT identity is not political. They view the ability of government agents to sprinkle “queer” symbolism freely throughout public spaces, including federally funded entities, as protected free speech rights guaranteed under the First Amendment.

“First of all, the notion that an LGBTQ identity is political is something that we take issue with. We don’t think that who people are is a political stance. We don’t think the way that somebody identifies or the way somebody was born is a question of politics,” Utah Pride Center Executive Director Chad Call told the Washington Examiner. “We believe that the political issue here was created not by us, but for us.”

“I come back to the fact that we don’t believe pride flags are a political statement,” he continued. “It’s not a partisan issue. A pride flag doesn’t stand with or against a certain political party. I think that they may be turning it into [a partisan issue] if they keep pursuing legislation such as this, but we stand firmly non-partisan. We are apolitical ourselves.” 

Lee pushed back on such claims during an interview this week. 

“I would argue that a lot of the things pertaining to Pride started out as a movement. They were not political in the beginning, but they have become very political now. It’s turned into ‘Oh, if you don’t agree with me, you’re a bigot and you’re a homophobe.’ Then it turns into ‘Oh, let’s start pushing it on your children in schools,’” he said. “If people want to have their movements and do their things, that’s fine, but to try to push on everyone else is where Americans are sick and tired of it, specifically Utahns.”

The Foundation for Individual Rights and Expression, the country’s largest free speech absolutist group, argued the validity of the law doesn’t revolve around whether LGBT flags are considered political speech, and that the state has “a lot of leeway to regulate” government speech.

While advocates on both sides can argue whether allowing taxpayer-funded individuals or institutions to fly LGBT flags on public property violates political neutrality, Tyler Coward, FIRE’s lead counsel for government affairs, told the Washington Examiner that the state is within legal bounds to set regulations for its employees. 

“There may be, you know, arguments that this sort of restriction undermines a culture for free expression by limiting or narrowing the field of permissible flags,” he said. “But the government does have a lot of leeway to regulate the speech because government speech is a thing the government can engage in, and declining to fly flags from the government is a likely a decision that the state can make.” 

In addition to restricting pride flags, the law prohibits the public promotion of nearly all other flags on school and government property, including those supporting President Donald Trump and the Black Lives Matter movement. There are only a dozen exceptions under the new law: the U.S. flag, Utah state flag, flags of Native American tribes, Olympic flags, military flags, flags of other countries, and flags for colleges and universities may be flown by anyone, anywhere, at any time.

The restrictions on pride flags have drawn the most scrutiny from civil rights groups. In academic settings, including higher education, faculty are prohibited from displaying pride flags in classrooms. They may have a pride flag in their private office, if it’s not visible from a window. However, faculty and other paid personnel may wear or display T-shirts, lapel pins, signs, stickers, posters, or other signage supporting Pride or other restricted flags, as those items are not mentioned under the law. 

Civil rights groups that spoke to the Washington Examiner were frank that they want LGBT symbolism to be used freely and frequently by teachers and federally paid officials. Lee would “would like to remove as much queer symbolism as possible from the public eye,” Call claimed, while arguing “our goal is quite transparently almost the exact opposite. Our organization exists to unite, empower, and celebrate Utah’s LGBT community, and we believe that symbols are an important part of doing that.”

American Civil Liberties Union of Utah communications director Aaron Welcher reiterated similar points, saying schools should be institutions “where people can have diverse viewpoints and have open conversations about these various topics, and I think that very much includes topics of identity and culture, race, [and] sexuality.”

Far from seeking to become politically neutral, the law is “trying to erase, silence, push out of public life, really, one certain group of people,” Welcher told the Washington Examiner. He revealed that the ACLU could be looking to file a lawsuit against the law, but stopped short of confirming its intent.

“We really see this as a restriction of free expression, and it sends a clear message to certain community members, kids at school, that they’re not welcome and that elected officials don’t care about them,” he said. “This is definitely, you know, right in our area that we’re looking to explore because, as we’ve always promised, we will take up the cases that protect the most civil rights and liberties for Utahns.”

The law primarily seeks to distinguish between institutionally sanctioned displays of the flag and private endorsements of the symbol. For example, a registered student club that doesn’t represent a school could display pride flags for an event on campus, while a group tied to the school, such as student government, cannot, per the Salt Lake Tribune. The mayor’s office cannot participate in an LGBT parade flying the flag, but the mayor could attend the parade in a private capacity. In other words, institutions or personnel funded by taxpayers cannot endorse the flag, but individuals or those acting privately can. 

“At the base level, the government does have a lot of authority to regulate the speech of its agencies,” Coward said. “[But] government employees, in their personal capacities, maintain strong free speech rights. I think it’s important to make that distinction.” 

Call expressed worry about the law’s impact on Salt Lake City’s pride flag-raising ceremony, typically carried out to mark the beginning of Pride Month every year. This June, the flag-raising ceremony may have to be axed because it has historically been done in conjunction with the mayor’s office. Under the new law, the mayor can no longer fly pride flags in an elected capacity. 

“Our organization’s position on this is that we do feel like it is extreme government overreach on a state level,” Call said. 

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Lee pushed back, saying that LGBT groups should realize that Utah ”is not the place and taxpayer-funded entities are not where you should be pushing political ideologies.”

“They know we’re trying to have … healthy political neutrality here. And so if they’re going to keep trying to get around that, well then we’ll just keep passing bills to stop their ideas, and it’s going to be easier and easier every single time,” he said.