Judge Wendy Berger Tosses Challenge on Florida “Don’t Say Gay” Law

TALLAHASSEE, FL — (08-18-23) — For the second time in less than a year, a Central Florida federal judge has backed the GOP’s “Don’t Say Gay” Law by dismissing a lawsuit challenging the 2022 state law that restricts instruction on gender identity and sexual orientation in schools.

Last Wednesday, U.S. District Judge Wendy Berger issued a 37-page ruling rejecting the lawsuit filed by parents, students and a non-profit group against members of the State Board of Education and the school boards in Orange, Indian River, Duval and Palm Beach counties.

This is also the same judge that dismissed an earlier version of the lawsuit in October, though she allowed the plaintiffs to file a revised version. Judge Berger’s ruling Wednesday included a series of issues, including her conclusion that most of the plaintiffs had not shown legal standing.

In February, Tallahassee-based U.S. District Judge Allen Winsor dismissed a separate lawsuit challenging the controversial law. Plaintiffs appealed that ruling to the 11th U.S. Circuit Court of Appeals.

The anti-LGBTQ 2022 Florida law that has drawn national condemnation, prevents instruction on gender identity and sexual orientation in kindergarten through third grade and required that such instruction be “age-appropriate … in accordance with state academic standards” in older grades. Supporters called the measure the “Parental Rights in Education” law — while opponents labeled it the “don’t say gay” bill.

The Republican-controlled Legislature and Gov. Ron DeSantis to their war against the LGBTQ Community of Florida further this year by approving a bill to broaden the prohibition on instruction about gender identity and sexual orientation to pre-kindergarten through eighth grade.

“The impact of the law has been immediate and severe,” the revised version, filed in November, said. “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.”

However in Wednesday’s ruling, Judge Berger wrote that almost all of the plaintiffs lacked legal standing. She went further by saying that only two of the Cousins family children had “allegations sufficient to establish standing” on First Amendment issues.

As an example, Berger wrote that Dinan, one of the Indian River County parents, alleged he censored himself while chaperoning a school field trip “because he was concerned that mention or discussion of his husband or family could have been considered classroom instruction by a third-party.” But Berger rejected his First Amendment arguments.

“While Dinan felt his speech was chilled when he was acting as a chaperone, plaintiffs still fail to offer any argument as to how a reasonable person would have objectively believed that mentioning his same-sex spouse while acting as a chaperone would constitute instruction on sexual orientation or gender identity,” wrote Judge Berger.

While Berger focused heavily on standing issues, she also rejected the lawsuit on other grounds, such as by saying the platinfiff’s lawsuit was what is known as an improper “shotgun pleading.”

“Plaintiffs also continue to include numerous allegations that appear to be wholly immaterial,” Berger, who was appointed to the federal bench by former President Donald Trump, wrote. “Even if such allegations are not immaterial, the complaint is not the proper place for legal argument or posturing.”

Article by: Paul Goldberg, Staff Writer

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