Judge dismisses second challenge to Florida’s ‘Don’t Say Gay’ law

A federal judge has dismissed a second challenge to a new Florida education law limiting the ability of public school educators to address LGBTQ topics in the classroom, ruling that students and parents had not provided enough evidence to show they had been harmed.

U.S. District Court Judge Wendy Berger, a Trump appointee, on Thursday refused a request made by a group of Florida LGBTQ students, their families and multiple civil rights groups in July for a preliminary injunction to block enforcement of what critics have labeled as the “Don’t Say Gay” law.

Under the law signed by Gov. Ron DeSantis (R) in March, public primary school teachers are barred from engaging in classroom instruction related to sexual orientation or gender identity.

Educators through high school are prohibited from addressing either topic in a manner that is not “age appropriate or developmentally appropriate” for their students.

Berger on Thursday 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 family structures.

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

“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,” Berger wrote.

Plaintiffs will have until Nov. 3 to file an amended complaint.

Kell Olson, a staff attorney at Lambda Legal, which filed the lawsuit in July 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,” Olsen said.

Simone Criss, director of the transgender rights initiative at the Southern Legal Counsel, said the groups plan to press forward in challenging the law.

“This fight is not over – it has just begun,” Criss said. The Southern Legal Counsel is one of four organizations suing to block the enforcement of another Florida law that prevents transgender people from using Medicaid to help pay for gender-affirming health care.

Just weeks before Berger’s ruling, a Tallahassee judge dismissed another challenge to Florida’s “Don’t Say Gay” law that had claimed the law violated the U.S. Constitution and Title IX, which prohibits educational institutions receiving federal funds from discriminating based on sex.

Similar to Thursday’s ruling, U.S. District Judge Allen Winsor in his Sept. 29 decision found that plaintiffs in the case had not demonstrated how the law had harmed them.

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