A federal judge has refused to block school districts from carrying out a new state law that restricts instruction on gender identity and sexual orientation in classrooms, rejecting arguments by parents, students and a non-profit organization.
The ruling Thursday by U.S. District Judge Wendy Berger was the second time in less than a month that a federal judge has turned down a challenge to the law. U.S. District Judge Allen Winsor on Sept. 29 dismissed a separate case, though he said plaintiffs could file a revised version.
Berger, who is based in Orlando, issued a 28-page decision that denied a request for a preliminary injunction against the law. Berger also dismissed the case but, like Winsor, said the plaintiffs could file a revised version.
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.
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 lawsuit in July against the school boards in Orange, Indian River, Duval and Palm Beach counties. In a motion for a preliminary injunction, they argued the law “was enacted with the purpose to discriminate and has the effect of discriminating against LGBTQ+ students and those with LGBTQ+ family members.”
They alleged violations of speech, equal-protection and due-process rights and pointed to steps that the school districts have taken to try to comply with the law (HB 1557).
But Attorney General Ashley Moody’s office and the school boards argued that Berger should reject the motion for a preliminary injunction, in part because the plaintiffs did not have legal standing.
Berger’s decision Thursday denied the injunction on a series of grounds, including describing the lawsuit as a “shotgun pleading” and saying 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 in the first amended complaint (the lawsuit).”
Berger also said the plaintiffs had not shown they had standing. As an example, a married same-sex Indian River County couple, David Dinan and Vikranth Reddy Gongidi, are plaintiffs on their behalf and on behalf of their children, identified by the initials K.R.D. and R.R.D.
They alleged harm, in part, because the law would force them to “self-censor” during school activities, according to Berger’s ruling. But the judge rejected the argument, saying they had not alleged an “injury in fact.”
“Although they make vague allegations regarding their self-censorship at school events before the law went into effect, they fail to state any detail as to how they wished to exercise their rights since the law actually went into effect or might wish to exercise their rights in the future,” wrote Berger, who served as a state appellate judge before being appointed to the federal bench by former President Donald Trump in 2019.
Other plaintiffs include Orange County residents Jennifer and Matthew Cousins and their four children, including a seventh-grade student, S.C. who is gender non-binary. They argued that the law would chill speech at school and could result in increased bullying of S.C.
But Berger found they had not shown standing.
“Plaintiffs have not pointed this court to any policy or procedure from Orange County that they allege has resulted in any increase in bullying that S.C. might experience at school,” Berger wrote. “While the court is sympathetic to the Cousins’ fear that their child may be bullied, it is simply a fact of life that many middle school students will face the criticism and harsh judgment of their peers. S.C. is not alone in this regard. Indeed, middle school children bully and belittle their classmates for a whole host of reasons, all of which are unacceptable, and many of which have nothing to do with a classmate’s gender identity.”
The plaintiffs are represented in the case by attorneys from Lambda Legal, the Southern Poverty Law Center, Southern Legal Counsel and the law firm of Baker McKenzie LLP. They issued statements Friday criticizing Berger’s ruling and vowing to continue fighting the law.
“The court’s decision is wrong on the law and disrespectful to LGBTQ+ families and students. HB 1557 suppresses wholesale the speech and identities of LGBTQ+ students and their families,” Kell Olson, a staff attorney at Lambda Legal, said in a statement. “It sends a message of shame and stigma that has no place in schools and puts LGBTQ+ students and families at risk. The students and families at the heart of this case have experienced more bullying in the months since the law went into effect than ever before in their lives, but the court dismissed their experiences of bullying as ‘a fact of life.’ The court’s decision defies decades of precedent establishing schools’ constitutional obligations to protect student speech and to protect students from targeted bullying and harassment based on who they are.”
Angela Vigil, a partner and executive director of pro bono practice at Baker McKenzie, said the plaintiffs “look forward to continuing the fight against this unjust and dangerous law. We plan to show the court and the state the harm caused to children and families by this law is destructive in so many ways for education, community, families and, most importantly, children.”
Other plaintiffs in the case are Will Larkins, a senior at Orange County’s Winter Park High School, and the non-profit CenterLink, Inc., which has members including LGTBQ community centers in Orange, Duval and Palm Beach counties. Berger gave the plaintiffs until Nov. 3 to file a revised lawsuit.
–Jim Saunders, News Service of Florida
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Garth says
What is wrong with people that think it’s okay to teach 5-8 year olds about sexual orientation and ideology in the classroom. There is no place for the sexualization of kindergarten age children in school.
A bunch of virtue signaling I’m holier than thou people will chime in. Let me just say in advance you need mental health counseling because you’re sick.
Robert Joseph Fortier says
This is what happens when we no longer believe in a God.
Mark says
Nobody is teaching that now, there is no sex-ed in K-3.
Skibum says
I wish people would stop believing all of the political motivated nonsense coming from DeSantis and other far right idiots who are trying, and apparently succeeding, Garth, in scaring people with these lies. Go ahead and ask ANY kindergarten teacher why, or if, they are teaching such a thing to their students. I dare you! One thing desperately needs to be taught to young children in school though, and that is anti-bullying of other kids just because they may be different. Bullying is never okay, but our gov and far right conservatives seem to think that it is perfectly fine, and now completely legal, to ostracize, harrass, single out and belittle kids who are different by their own traits, mannerisms or same sex parents. It is NOT okay! Kids need to be told that some children in their school may have two moms or two dads if the subject comes up when kids are sharing about their family or what they did last weekend or during the summer. This barbarian law DeSantis put in place makes it a crime just to be inclusive and give kids with non-traditional families the same rights as other students when sharing about their own families. This is what is happening in Florida schools, NOT trying to teach sex to very young kids, and DeSantis went on a rampage just to score political points from his far right base, and children who may be different as well as those with same sex parents are paying a high price because the stupid gov has given carte blanche to schook students to BULLY other kids who happen to be different. Wow, what a “Christian”, moral thing to do, huh? NOT!
Florida Voter says
This bill also bans teaching about gender identity. This means that it is illegal (according to this law) for any K-3 class to divide up based on “boys ‘vs girls.” It is illegal for a teacher to tell a “boy” (in quotes because that is a type of gender identity) to use the boy’s bathroom. That would be re-enforcing (and hence teaching) the student that he is a boy. Same for girls. In K-3, this law makes it illegal to teach that some people are boys and some people are girls. That’s teaching about gender identity.
Teaching that boys and girls are different is not sexualization.
The only politicians that I see “[sexualizing] kindergarten age children” are member of the GOP.
HayRide says
What is wrong with people. This world is a mess!
Art G Schwartz says
“There is no place for the sexualization of kindergarten age children in school” . The comment is correct, however, socialization of children should be accomplished at home, where, one hopes, love and respect for all humanity will prevail. Schools should reinforce these ideas, not hide from them.
tulip says
I have a son who went through the school system and a grandchild who is in kindergarten, as well as friends who have the same. In all these years I have never once heard mine or any other child talk about the teachers teaching sexual orientation, etc in school. All of a sudden it becomes an issue? When did teachers decide they might want to teach that subject anyway? Seems like it was intentionally made into a political issue to further divide people.
Mark says
That is exactly what it is. Another lie brought to you by the GOP.
Sandra says
Google is your friend, Mark. Do a little objective research and see what is going on. No lies from GOP my friend. And you may get more objective results by using duck duck go.
Mark says
Sandra, Be careful of nefarious websites and only look for fact based sites with other sites to back up that fact. I stand by what I said.
Bartholomew says
Mark is correct. It is kind of like a leading question. If they make a law about something then it must be happening. It is not happening, it is just another way to deceive people
Local says
It’s not a subject or class! U people are ignorant! It’s a law that doesn’t allow school employees to discuss this subject with kids that have no clue what these adults are talking about. It’s “grooming ” if you ask me….that’s a felony. And for the record ….it does happen….just not as a course.
Florida Voter says
First: I fully agree that this is a issue that was created purely for the GOP to rally voters. The can stand up and say that they are defending our children and upholding good Christian values.
Since we are chasing non-existent issues, maybe they should make it illegal for “Lizard People” to become teachers. They can also prohibit school cafeterias from serving Unicorn meat and even refuse to fund field trips to Asgard. Those would make about as much sense as this “Don’t Say Straight” bill.
IMYellowstone says
No wonder this world is gotten so screwed up!
Those of us from the ‘Babby Boomer’s Era’ created this mess. We had teachers that indoctrinated us with words like homosexual, queer, gay, and lesbian. We used to throw rocks at kids the teachers pointed out to us that appeared different.
Now it’s the teachers of the GenX era who are now instead saying LBGQT+ – whoever that refers to.
What a GOP lie! What a mess . . .
(Remember to intelligently VOTE – and VOTE often.)
Blossom says
Don’t any ever tire of the hate, the judging, the division all this is causing? And yes, it is highly inappropriate to be using children in all this.
Our children are being dumbed down in an effort to cram an agenda down their throats. How is that working for us?
So much hate, so much anger on both sides. Do your children a favor, give them a chance at life, home school them.
Tony Mack says
I’m not going to cite the entire story but I would like to ask any readers here who are teachers —
Are you teaching children in these grades anything to do with “gender identification and sexual orientation” as alleged?
Are there any teachers actually doing this and additionally, are there any parents aware of any teachers instructing children in K-Third grade who are doing this?
We must have teachers on this site or people who know teachers who can verify if this is actually the case. Enlighten us all…
Also — are any teachers actually teaching about gays, transgenders, in grades K-3 or any grade for that matter? Have teachers been told by school administrators to teach such subjects? Please tell us now and you can remain anonymous if you wish. I’m just trying to figure out where these school boards and DeSantis are going with this. I’d like to know their proof that children are being defiled with this teaching before I vote for those running for school board positions.
If there is proof that teachers are actually instructing K-3 students about gender identify and sexual orientation…are there videos or audio tapes of such instruction? Are their photos the teachers are using to describe such things they deem as odious. Does anybody have any proof?
Also, I’d like to know what books have been banned from the local schools and for what reasons or what books potential school board members think should be banned. I’d like to know if potential school board members ever read the very books they might ban and if they did — did it have any moral or ethical effect on their lives. I’d like to know what teachers think about books being banned from reading lists and libraries.
Thanks…
Mark says
Thank you Tony. As you can see two days later and not one of these conspiracy theory believers has replied to you. When they are presented with the question to produce facts they move on to the next conspiracy theory.
Tony Mack says
Exactly, Mark. I returned to the Comments to see if anyone could actually produce some “Facts” or instances where this was taking place. Not one!!! How about that. Same with CRT, and any other number of conspiracies promulgated by Republicans. Pitiful…really,
Florida Voter says
One comment that I haven’t seen yet is about the sentence:
“Indeed, middle school children bully and belittle their classmates for a whole host of reasons, all of which are unacceptable, and many of which have nothing to do with a classmate’s gender identity.”
So that judge is saying that since kids get bullied for other reasons, it’s okay if this bill increases the bullying for gender identity? WT-Holy-F!!!
That’s like saying that since people die because of “a whole host of reasons,” a law that leads people to kill others over gender identity is perfectly fine??? This, even in the same sentence as declaring those reasons as “unacceptable.”
It’s fine because it also happens to other people. It’s fine because it also happens for other reasons. That floored me.
Timothy Patrick Welch says
Should sports be combined so only the best players compete?
Are there differences between boys and girls?
According to the 2022 National Assessment we should be concentrating on reading and math. Right?