U.S. District Court Judge Allen Cothrel Winsor dismissed a lawsuit Oct. 3 against Florida’s infamous “Don’t Say Gay or Trans law” on the grounds that the plaintiffs lacked legal standing to challenge the law.
Winsor, a judge on the United States District Court for the Northern District of Florida nominated by former President Donald Trump, issued a 25-page order dismissing the case brought by students, families, educators, Family Equality and Equality Florida against the “Parental Rights in Education” bill passed in March of this year by the Republican-controlled Legislature and signed into law by Gov. Ron DeSantis.
The lawsuit alleged, in part, that the law violated First Amendment and due-process rights. It reads, “Classroom instruction by school personnel or third parties on sexual orientation or gender identity may not occur in kindergarten through grade 3 or in a manner that is not age-appropriate or developmentally appropriate for students in accordance with state standards.”
In his ruling, Winsor left open the question on the constitutionality instead focusing on whether the plaintiffs showed they had standing to pursue the case — and concluded that they had not met that requirement.
“The principal problem is that most of plaintiffs’ alleged harm is not plausibly tied to the law’s enforcement so much as the law’s very existence,” Winsor wrote. “Plaintiffs contend the law’s passage, the sentiment behind it, the legislators’ motivation, and the message the law conveys all cause them harm. But no injunction can unwind any of that.”
The judge also pointed out that violations of the law would be enforced against school districts, not individual teachers.
“With or without the law, school districts direct teachers as to what they may and may not teach,” he noted. “Plaintiffs do not allege otherwise; they do not assert, for example, that Florida’s public-school teachers may teach whatever lessons they wish. So to the extent plaintiffs allege that some teachers or others wish to provide ‘classroom instruction … on sexual orientation or gender identity’ to students ‘in kindergarten through grade 3,’ they would have to show (at a minimum) that without the law their individual school district would allow it. Yet plaintiffs offer no specific allegation that any teacher would be providing such classroom instruction absent HB 1577.”
Winsor gave the plaintiffs 14 days to file a revised lawsuit but also took the state to task. He stated that “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.”
The judge also spelled 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, fail to step in when they face bullying or remove signs of support like rainbow flags from classrooms.
In a June motion to dismiss the case, the state’s lawyers argued that the plaintiffs did not have standing. But they also wrote that the plaintiffs “have not come close to showing that the Legislature acted out of animus against LGBTQ individuals.”
“The bill reflects no governmental preference about what students should learn about sexual orientation and gender identity,” the state’s lawyers wrote. “Those subjects must be taught appropriately and, for the youngest children, they may be taught by parents, not in public-school classroom settings. That is a legitimate (state) interest.”
In a statement released after the ruling from Winsor, Equality Florida wrote:
“Judge Winsor acknowledges what has been clear from the beginning: that in DeSantis’s Florida, the political climate is so toxic for LGBTQ people that school districts are actively abdicating their responsibilities, choosing instead to capitulate to extremists and the toxic anti-LGBTQ brew they have created rather than adhere to the letter of the law. This fight is not done. We will continue to expose the harm that Florida’s Don’t Say LGBTQ law is inflicting on children and families. A court decision doesn’t negate that harm. This ruling focuses on whether the parents, students or organization were the right plaintiffs to bring it forward. Equality Florida made a commitment to fight to ensure every student is protected and every family is respected, and that’s exactly what we intend to do through any means necessary.”
The lead attorney for the plaintiffs, who are represented by Kaplan Hecker & Fink, LLP, the National Center for Lesbian Rights and Elizabeth F. Schwartz, emailed a statement after the ruling.
“While we are currently assessing our options, one thing we can promise for sure is that we will not give up this fight on behalf of all the Florida LGBTQ+ kids, parents, and teachers who this law literally seeks to erase from their schools and communities,” said Roberta “Robbie” Kaplan.
