LGBTQ Agenda: Suit against Florida's 'Don't Say Gay' law dismissed on technicality

  • by Eric Burkett, Assistant Editor
  • Tuesday October 11, 2022
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Demonstrators gather to speak on the steps of the Florida Historic Capitol Museum in front of the Florida State Capitol, March 7, 2022, in Tallahassee, Florida. Photo: AP
Demonstrators gather to speak on the steps of the Florida Historic Capitol Museum in front of the Florida State Capitol, March 7, 2022, in Tallahassee, Florida. Photo: AP

Florida's "Don't Say Gay" law continues to stand after a federal judge dismissed a suit against it on technical grounds. A judge for the United States District Court for the Northern District of Florida dismissed on September 29 a lawsuit filed by Equality Florida against the Florida State Board of Education over House Bill 1557, which Republican Governor Ron DeSantis signed into law earlier this year.

In a 25-page ruling, federal Judge Allen Winsor — a Donald Trump appointee — dismissed the suit that was filed in March, immediately after HB 1557 was passed. Windsor determined that the plaintiffs, including Equality Florida, had no standing and could not demonstrate there had been actual injuries as a result of the law.

While Brandon Wolf, press secretary for Equality Florida, told the Bay Area Reporter, "We remain in conversation with our attorneys on next steps for us," the LGBTQ rights group found some consolation in parts of Winsor's ruling, noting that "the judge confirms what we have argued from the beginning: that the anti-LGBTQ animus fueling this law is causing harm," the organization stated in a news release.

"He acknowledges that rhetoric like that being used by Governor DeSantis and the zealotry of school districts desperate to avoid his ire are at the root of the chilling effects we're witnessing across the state," the statement continued. "The toxic climate being created by the governor and his allies to score cheap political points is, indeed, causing damage."

Equality Florida has until October 13 to refile. The B.A.R. reached out to the Florida State Board of Education for a comment but had not received a response by press time. Notably, the board has not issued any statements on the matter.

Florida's law bans classroom discussion or teaching of sexual orientation or gender identity in kindergarten through third grade. Lessons for students older than third grade have to be "age appropriate or developmentally appropriate for students in accordance with state standards," according to the text of the law that does not, however, define what is age or developmentally appropriate.

In what opponents said is a clear effort to stifle opposition, the law also opens up both school districts and teachers to potential lawsuits.

"A parent of a student may bring an action against a school district to obtain a declaratory judgment that a school district procedure or practice violates this paragraph and seek injunctive relief," the law reads. "A court may award damages and shall award reasonable attorney fees and court costs to a parent who receives declaratory or injunctive relief."

Equality Florida stated it was pleased with the part of Winsor's calling out of school districts that had applied the law in an overly broad manner in order to avoid litigation.

Winsor wrote, "nothing in the law — much less in its conceivable enforcement — could 'empower' other students to do anything they could not otherwise do with respect to treating LGBTQ students differently."

Stated Equality Florida, "He spells out that the law should not be used to silence students from talking about their LGBTQ parents, to silence LGBTQ teachers from acknowledging their partners, or to exclude LGBTQ parents from school events. And that it should not be used to treat LGBTQ students differently, to fail to step in when they face bullying, or to remove signs of support like rainbow flags from classrooms."

Nor did Winsor rule on the constitutionality of the law. He did, however, determine that the plaintiffs in the suit, as well as students, parents, and teachers, had no standing in the case.

Equality Florida was represented by Kaplan Hecker & Fink, LLP; San Francisco-based National Center for Lesbian Rights; and Elizabeth F. Schwartz, Professional Association. (NCLR officials did not respond to a request for comment at publication.)

Ultimately, Winsor stated that plaintiffs were unable to point to any "causal chain" linking their injuries to implementation of the law.

"The principle problem is that most of the plaintiffs' alleged harm is not plausibly tied to the law's enforcement as the law's very existence," Winsor wrote, adding a little later in the ruling that the plaintiffs' complaint "is replete with allegations showing their asserted injuries flowed from something other than the law's enforcement. Indeed, they allege that the law's 'harmful effects' were 'already manifest' even before the law became effective — before, that is, it even could be enforced."

The plaintiffs, he said, alleged a "culture of fear created by HB 1557" but were unable to identify any actual injuries as a result.

California was one of 15 states and the District of Columbia that filed amicus briefs in support of the suit against the law. California Attorney General Rob Bonta called HB 1557 "an unlawful attempt to stigmatize, silence, and erase LGBTQ+ students from Florida's public schools," in an August 4 statement. "Rather than creating a nurturing, safe environment, Florida's law simply punishes children and their families for who they are. In California, we're not going to ignore discrimination and attacks on the LGBTQ+ community. We urge the court to affirm the rights and dignities of all of our children and allow this lawsuit to move forward."

One particular aspect of the law the attorneys general raised was the impact of its enforcement on states beyond Florida. According to the amicus brief, "the Act directly implicates Amici States' interest in protecting at-risk youth who will be placed in Florida pursuant to the Interstate Compact for the Placement of Children."

All 50 states participate in the compact, which establishes guidelines of obligations toward children who are wards of the state as they are relocated to other states. In their brief, amici states argue "those children who identify as LGBTQ will be stigmatized by Florida's new law. LGBTQ youth from Florida may also be placed in Amici States under the ICPC, leaving schools and social services agencies in Amici States to address the negative impacts of Florida's law."

LGBTQ Agenda is an online column that appears weekly. Got a tip on queer news? Contact Eric Burkett at [email protected]

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