Florida parents, students challenge 'Don't Say Gay' law in revamped lawsuit

The new lawsuit challenges the controversial law on First Amendment grounds

click to enlarge Parents and students are suing school boards across the state, including Orange County. - Adobe
Adobe
Parents and students are suing school boards across the state, including Orange County.

Parents, students and a non-profit group have filed a revised lawsuit after a federal judge last month tossed out a challenge to a new state law that restricts instruction on gender identity and sexual orientation in public schools.

The revised version, filed Thursday in federal court in Orlando, alleges that the law is unconstitutional, including “chilling” First Amendment rights. Defendants are the State Board of Education and the school boards in Orange, Indian River, Duval and Palm Beach counties.

“The law, by design, chills speech and expression that have any connection, however remote, to sexual orientation or gender identity,” the 66-page lawsuit 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.”

The law, which has drawn nationwide attention, 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 higher grades. It also opens school districts to lawsuits over alleged violations of the restrictions.

Republican lawmakers this year titled the measure the “Parental Rights in Education” bill. Opponents labeled it the “Don’t Say Gay” bill.

Lawyers for the parents, students and non-profit group filed the initial version of the lawsuit in July. But U.S. District Judge Wendy Berger last month denied a request for a preliminary injunction and dismissed the case. Berger, however, said the plaintiffs could file a revised version.

Berger ruled on a series of grounds, including saying that the plaintiffs did not show they had legal standing. Also, she described the lawsuit as a “shotgun pleading” and said the plaintiffs “fail to specify what policy or custom of each defendant supports liability” under the U.S. Constitution.

“Instead, plaintiffs dedicate their time exclusively to arguing that the underlying law is unconstitutional, without specifying any causal link between the actions of these defendants and the alleged deprivation of a constitutional right,” Berger wrote. “On this basis alone, the court finds that plaintiffs have failed to show a likelihood of success on the merits on any of the claims they attempted to allege.”

Berger’s ruling came after U.S. District Judge Allen Winsor dismissed a separate challenge to the law filed in Tallahassee. Like in the Orlando case, plaintiffs in the Tallahassee lawsuit filed a revised version Oct. 27.

Plaintiffs in the Orlando case are Orange County residents Jennifer and Matthew Cousins and their four children, including a seventh-grade student who is gender non-binary; Will Larkins, a senior at Orange County’s Winter Park High School and president of the school’s Queer Student Union; a married same-sex Indian River County couple, David Dinan and Vik Gongidi, who have two children in public schools; and the non-profit CenterLink, Inc., which has members including LGTBQ community centers in Orange, Duval and Palm Beach counties.

In addition to raising First Amendment issues, the revised version of the lawsuit alleges that the law violates due-process and equal-protection rights. The due-process issue stems, at least in part, from arguments that the law includes vague terms that have “led to, and continue to lead to, discriminatory and arbitrary application and enforcement across various school districts.”

As examples, the lawsuit said the measure doesn’t include definitions of “classroom instruction,” “sexual orientation,” “gender identity” and “age-appropriate.”

“The law’s nebulous and overbroad terms achieve the intended, discriminatory goal of erasing all mention of LGBTQ+ people and families in schools,” said the lawsuit, filed by attorneys from Lambda Legal Defense, the Southern Poverty Law Center, Southern Legal Counsel and the firm Baker McKenzie LLP. “The law creates lose-lose situations for parents, teachers, and students. A school either can avoid any conversation acknowledging LGBTQ+ people or face a lawsuit by any parent hostile to the presence of LGBTQ+ students and families.”

Gov. Ron DeSantis has frequently touted the law as he runs for re-election this year. When he signed the measure (HB 1557) in March, DeSantis said parents’ concerns about their children’s education are “being ignored increasingly” across the country, and he derided the law’s critics.

“They support sexualizing kids in kindergarten,” DeSantis said of critics. “They support injecting woke gender ideology into second-grade classrooms. They support enabling schools to, quote, transition students to a, quote, different gender without the knowledge of the parent. Much less, without the parents’ consent.”

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