Trump-appointed judge dismisses challenge to Florida’s “Don’t Say Gay” law a second time

A Trump-appointed judge has dismissed a challenge to Florida’s infamous “Don’t Say Gay” law for the second time.  

Last week, U.S. District Judge Wendy Berger rejected a lawsuit brought by Lambda Legal, the Southern Legal Counsel, and the Southern Poverty Law Center on behalf of a group of LGBTQ+ students, parents, and a nonprofit group seeking a preliminary injunction against the state’s Parental Rights in Education Act, also known as the “Don’t Say Gay” law.

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“It is simply a fact of life that many middle school students will face the criticism and harsh judgment of their peers,” wrote the judge.

The legislation, signed into law last year by Florida Gov. Ron DeSantis (R), bans instruction on topics related to sexual orientation and gender identity in pre-kindergarten through eighth grade and requires discussion of those topics to be “age appropriate” in higher grades.

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This is the second time Berger has dismissed this case. Last October, she rejected a previous version of the lawsuit, giving plaintiffs until November 3 to file an updated version. (Another Trump-appointed judge, Allen Cothrel Winsor, dismissed a separate challenge to the law earlier this year.) As Orlando Weekly reported, the revised version of the lawsuit argued that the law violates the plaintiffs’ First Amendment rights by chilling speech related to sexual orientation and gender identity, while also raising equal protection and due process arguments.

“The impact of the law has been immediate and severe,” the revised version stated. “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.”

In her 37-page ruling, issued last Wednesday, Berger wrote that all but two of the plaintiffs lacked standing. She also rejected the argument that the law forced one parent, David Dinan, 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.”

“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 wrote.

While the law does not explicitly ban the mention of LGBTQ+ people in schools, the Florida Department of Education has not yet released official guidance on how the law should be applied. At the same time, the law allows parents to sue school districts if they feel the law has been violated. Critics of the law say that it caters to particularly litigious parents who will sue school districts over their own interpretations of its provisions, forcing schools to foot the bill for frivolous lawsuits and, thus, chilling any mention of LGBTQ+ people out of an abundance of caution.

Berger also wrote that the plaintiffs “continue to include numerous allegations that appear to be wholly immaterial.”

“Even if such allegations are not immaterial,” she wrote, “the complaint is not the proper place for legal argument or posturing.”

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