Federal court asked to revive challenge to Florida's 'don't say gay' law

Arguing that the measure has violated speech rights and led to discrimination, attorneys for students, parents and teachers are urging a federal appeals court to revive a challenge to a 2022 Florida law that restricts instruction about gender identity and sexual orientation in schools.

The attorneys filed an 80-page brief last week at the 11th U.S. Circuit Court of Appeals, contending that U.S. District Judge Allen Winsor erred when he dismissed the challenge to what Republican legislators called the “Parental Rights in Education” law — and opponents labeled the “don’t say gay” bill.

Winsor ruled in February that the plaintiffs had not “alleged sufficient facts” to show they had legal standing to challenge the law (HB 1557).

“Plaintiffs have shown a strident disagreement with the new law, and they have alleged facts to show its very existence causes them deep hurt and disappointment,” the Tallahassee-based Winsor wrote. “But to invoke a federal court’s jurisdiction, they must allege more. Their failure to do so requires dismissal.”

But the brief filed last week at the Atlanta-based appeals court sought to show that plaintiffs have suffered harm from the law.
“Simply put, the LGBT individual plaintiffs have personally experienced unequal and lesser treatment at the hands of teachers and officials who now restrict what they can say, read, hear, and wear,” the brief said. “That constitutes injury.”

The law, which has drawn national attention, prevented instruction on gender identity and sexual orientation in kindergarten through third grade and required that such instruction be “age-appropriate … in accordance with state academic standards” in older grades.

The Republican-controlled Legislature and Gov. Ron 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.

Winsor’s Feb. 15 ruling to dismiss the lawsuit came after he tossed out an earlier version in September. He allowed the plaintiffs to file a revised case after the September ruling.

Plaintiffs in the appeal are three LGBTQ students and 11 parents and teachers from areas such as Broward, Manatee, Miami-Dade, Orange, Pasco and St. Johns counties. Also, the LGBTQ-advocacy group Family Equality is a plaintiff.

The lawsuit alleges violation of First Amendment and equal-protection rights and of a federal law known as Title IX, which bars discrimination based on sex in education programs.

In trying to rebut Winsor’s ruling about a lack of standing, the brief pointed to issues such as teachers changing their curriculums because of the law.

As an example, it said Broward County teacher Scott Berg, a plaintiff who is gay, “no longer asks students to draw their families, out of concern that he might violate the law if students talk about their LGBT families or ask Berg about his own; he no longer speaks out against discriminatory comments in class (for example, when a student derisively calls another’s artwork ‘gay’); he does not keep a picture of him and his husband on his desk, even though other teachers keep photos of their opposite-sex spouses; and he feels unable to respond truthfully to students’ questions about who he travels with and says he went with a ‘friend.’”
As another example of the effects of the law, the brief said a Manatee County high-school student and plaintiff, identified by the initials M.A., “abandoned a proposal he had submitted to his school prior to the enactment of HB 1557 that would have created a committee to help teachers respond to common problems for LGBT students.”

“This group of students, parents, and teachers has suffered three principal forms of injury as a result of the passage of HB 1557: self-censorship, the denial of information and ideas, and subjection to discrimination in education,” the brief said.

As the case plays out at the appeals court, a separate constitutional challenge to the law is pending in federal court in Orlando. U.S. District Judge Wendy Berger on Oct. 20 dismissed that case but, like Winsor, gave the plaintiffs an opportunity to file a revised version.

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