Judge throws out challenge to Florida’s ‘don’t say gay’ education law, again

Red Florida
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For the second time in less than a year, a Central Florida federal judge has dismissed a lawsuit challenging Florida Gov. Ron DeSantis’s state law dubbed “Don’t Say Gay.” The controversial law, which DeSantis has expanded, restricts instruction about gender identity and sexual orientation in schools.

The 2022 law has drawn national attention and been a template for similar laws in other states. “Don’t Say Gay” prevents instruction on gender identity and sexual orientation in kindergarten through third grade and requires that such instruction be “age-appropriate … in accordance with state academic standards” in older grades. Officially titled the “Parental Rights in Education” law, LGBTQ+ advocates have labeled it “Don’t Say Gay.” 

The Republican-controlled Florida legislature and DeSantis went further this year by approving a bill to broaden the prohibition on instruction about gender identity and sexual orientation to pre-kindergarten through eighth grade. Then in April, DeSantis personally expanded the “Don’t Say Gay” laws to cover all K-12 classrooms. The final rule change bans lessons on sexual orientation and gender identity from grades 4-12, unless required by existing state standards or as part of reproductive health instruction that students can choose not to take.

Now, U.S. District Judge Wendy Berger has issued a 37-page ruling rejecting a lawsuit filed by parents, students and a nonprofit group against members of the Florida State Board of Education and the school boards in Orange, Indian River, Duval and Palm Beach counties. In the lawsuit, advocacy groups Equality Florida and Family Equality, along with Florida students, parents and a teacher, say the law is an “unlawful attempt to stigmatize, silence, and erase LGBTQ people in Florida’s public schools.”

The lawsuit, filed by the law firm Kaplan Hecker & Fink and the National Center for Lesbian Rights reads, “By design, H.B. 1557 uses vague terms to create a statutory structure in which anyone who discusses or acknowledges any aspect of LGBTQ identity must fear running afoul of the law, while it is simply taken for granted that discussing heterosexuality or cisgender identity in school settings is perfectly fine. The effect of H.B. 1557 is thus to chill the rights of teachers, students, and officials, who, like any rational person, will avoid the danger zone created by a state-mandated censorship code.”

Berger, a Trump appointee, dismissed an earlier version of the lawsuit in October 2022. At that time, the judge refused a request made by a group of Florida LGBTQ+ students, their families and multiple civil rights groups made in July 2022 for a preliminary injunction to block enforcement of the “Don’t Say Gay” law.

In October, Berger wrote that the case’s plaintiffs had not produced facts that would “lead a reasonable person to believe” the law prevents students from talking to their teachers or peers about their families or LGBTQ+ parents from attending school functions and openly discussing their own families.

Berger also dismissed concerns by the parents of one of the plaintiffs, a nonbinary middle school student, that the new state law would encourage more bullying at school. Berger wrote that “it is simply a fact of life that many middle school students will face the criticism and harsh judgment of their peers.”

She wrote, “Indeed, middle school children bully and belittle their classmates for a whole host of reasons, all of which are unacceptable, and many of which have nothing to do with a classmate’s gender identity.”

In October, Kell Olson, a staff attorney at Lambda Legal, which filed the lawsuit in July 2022 along with the Southern Poverty Law Center and the Southern Legal Counsel, said in a statement following Berger’s ruling that the decision is “wrong on the law and disrespectful to LGBTQ+ families and students.”

“The court’s decision defies decades of precedent establishing schools’ constitutional obligations to protect student speech, and to protect students from targeted bullying and harassment based on who they are,” Olson said.

At that time, Berger stipulated that the plaintiffs would be allowed to file a revised version of the suit. But Berger’s new ruling included a series of rationales for dismissing the suit, including that most of the plaintiffs had not shown legal standing to challenge the law.

The revised version, filed in November, said, “The impact of the law has been immediate and severe. Defendant school boards and their agents have already begun implementing significant changes under the law. They have instructed teachers to review hundreds of books that acknowledge LGBTQ+ people and families and have eliminated vital support systems for LGBTQ+ students, including guidance and training that combat bullying and violence.”

But in her latest ruling, Berger wrote that almost all of the plaintiffs lacked legal standing. She said only two of the children cited had “allegations sufficient to establish standing” on First Amendment issues.

Berger also rejected the First Amendment arguments of one of the gay male parents, David Dinan. He said he’d felt compelled to censor himself while chaperoning a school field trip “because he was concerned that mention or discussion of his husband or family could have been considered classroom instruction by a third-party.” 

In dismissing his argument, Berger wrote, “While Dinan felt his speech was chilled when he was acting as a chaperone, plaintiffs still fail to offer any argument as to how a reasonable person would have objectively believed that mentioning his same-sex spouse while acting as a chaperone would constitute instruction on sexual orientation or gender identity.”

Berger also rejected the lawsuit on other grounds, saying the lawsuit was what is known as an improper “shotgun pleading.”

She wrote, “Plaintiffs also continue to include numerous allegations that appear to be wholly immaterial. Even if such allegations are not immaterial, the complaint is not the proper place for legal argument or posturing.”

In February, Tallahassee-based U.S. District Judge Allen Winsor dismissed a separate lawsuit challenging the Don’t Say Gay law. Winsor found that plaintiffs in the case had not demonstrated how the law had harmed them. Plaintiffs appealed that ruling to the 11th U.S. Circuit Court of Appeals and it is pending.

Both the NAACP and LGBTQ+ advocacy group Equality Florida issued warnings to their constituents about traveling to Florida due to DeSantis’s racist, homophobic and transphobic policies.DeSantis, who is currently running for president, rose to national prominence through a series of extremist policies, notably the “Don’t Say Gay” laws, which President Biden has referred to as “hateful.”

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