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Challenge to 'Don't Say Gay' bill goes to federal appeals court

Demonstrators gather on the steps of the Florida Historic Capitol Museum in front of the Florida State Capitol in March in Tallahassee, Fla, protesting what opponents call the "Don't Say Gay" bill.
Wilfredo Lee
Demonstrators gather on the steps of the Florida Historic Capitol Museum in front of the Florida State Capitol in March in Tallahassee, Fla, protesting what opponents call the "Don't Say Gay" bill.

A challenge to a 2022 law restricting classroom instruction on gender identity and sexual orientation has gone to a federal appeals court, as state lawmakers and education officials look to expand the restrictions.

Attorneys for students, parents and teachers filed a notice of appeal at the 11th U.S. Circuit Court of Appeal after U.S. District Judge Allen Winsor last month dismissed — for the second time — a lawsuit arguing the law is unconstitutional. Winsor on Feb. 15 ruled that the plaintiffs had not “alleged sufficient facts” to show they had legal standing to challenge the law.

As is common, the notice of appeal does not detail arguments that the plaintiffs will make at the Atlanta-based appeals court. But the notice, filed this month, indicated the plaintiffs will challenge Winsor’s Feb. 15 ruling and a Sept. 29 ruling to dismiss the case. Winsor allowed the plaintiffs to file a revised case after the September ruling.

The law, which has drawn national 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 older grades.

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

The legal battle is continuing as the Republican-controlled Legislature moves ahead with bills that would expand through eighth grade the prohibition on instruction about gender identity and sexual orientation. The House Education & Employment Committee on Thursday approved one of the bills (HB 1069), which is ready to go before the full House.

Also, on April 19, the State Board of Education is scheduled to take up a proposed rule change that says teachers shall “not intentionally provide classroom instruction to students in grades 4 through 12 on sexual orientation or gender identity unless such instruction is either expressly required by state academic standards … or is part of a reproductive health course or health lesson for which a student’s parent has the option to have his or her student not attend.”

Such rule changes do not require legislative approval.

The challenge to the 2022 law contends that it violated constitutional due-process, equal-protection and First Amendment rights, along with a federal law known as Title IX, which bars sex-based discrimination in education programs.

Plaintiffs in the revised version of the case, filed in October, are two students in Miami-Dade County and Manatee County schools, two lesbian couples with children in Miami-Dade County schools, a woman with children in Orange County schools and two teachers in Broward County and Pasco County schools. The defendants are the State Board of Education, the Florida Department of Education and the school boards in Broward, Manatee, Miami-Dade, Orange and Pasco counties.

The lawsuit alleged the plaintiffs have suffered “concrete harms” from the 2022 law.

“They have been denied equal educational opportunities they would like to receive, in the curriculum and beyond, and they have been subjected to a discriminatory educational environment that treats LGBTQ people and issues as something to be shunned and avoided, on pain of discipline and liability,” the lawsuit said. “This type of overtly discriminatory treatment has no place in a free democratic society and should not be permitted to stand.”

But Winsor rejected the case because of standing issues.

“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,” Winsor wrote. “But to invoke a federal court’s jurisdiction, they must allege more. Their failure to do so requires dismissal.”

The law also has drawn a separate constitutional challenge 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. The revised lawsuit remains pending.