Judge questions Florida’s “Don’t Say Gay” law

ORLANDO, Fla. (AP) — For the second time in about a month, a lawsuit challenging Florida’s so-called “don’t say gay” legislation, which restricts teaching about gender identity and sexual orientation in schools, has been dismissed by a federal judge.

U.S. District Judge Wendy Berger on Thursday in Orlando dismissed a lawsuit brought by LGBTQ students, parents and their families — as well as several civil rights groups — denying their request for an injunction to prevent the law from being implemented. The judge gave plaintiffs until November 3 to file an amended complaint if they so wish.

The Orlando lawsuit named several Florida school boards as defendants tasked with enforcing the law banning sexual orientation and gender identity instruction in kindergarten through third grade and material not deemed age-appropriate. The lawsuit alleged that the law violated the plaintiffs’ constitutional rights by affecting their ability to speak about their LGBTQ families at school. The judge disagreed.

“The plaintiffs have not brought to the attention of this court any facts that would lead a reasonable person to believe that the law prohibits students from discussing their families and vacations at school or even on a school assignment, or that it prohibits a parent from speaking attend a school event wearing a ‘Pride’ t-shirt or generally discussing their family structure in front of other people,” wrote Berger, a candidate for former President Donald Trump.

Responding to concerns raised by the parents of a non-binary middle school student, who were plaintiffs and feared the law would encourage more bullying, the judge expressed sympathy. But Berger added, “It’s just a fact of life that many middle school students face criticism and harsh judgment from their classmates.”

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

About a month ago, a federal judge in Tallahassee dismissed a similar lawsuit against the law. In both lawsuits, the judges questioned the legal status of the plaintiffs, saying they had not specifically stated how the law had harmed them.

A report released in August by the Human Rights Campaign, one of the nation’s largest LGBTQ advocacy groups, and the Center for Countering Digital Hate says hateful references to gay, lesbian and other LGBTQ people online have increased after Florida’s Republican-dominated Legislature had passed the law. The law was championed by Governor Ron DeSantis, a Republican.

Civil rights groups that helped the families file the lawsuit called the judge’s decision “wrong” and said their fight against the law was not over.

“The students and families at the center of this case have experienced more bullying in their lives in the months since the law went into effect, but the court has dismissed their bullying experiences as ‘a fact of life,’” said Kell Olson, associate attorney at Lambda Legal, a civil rights group that focuses on LGBTQ rights: “The court’s decision bucks decades of precedents in which schools’ constitutional obligations to protect students’ expression of opinion and to protect students from targeted bullying and harassment based on their identity. ”


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