Judge again tosses challenge to Florida's 'Don't Say Gay' bill

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Florida Gov. Ron DeSantis speaks during the welcome segment of the Conservative Political Action Conference (CPAC) in Orlando, Florida, U.S. February 26, 2021. Photo by Joe Skipper/Reuters

ORLANDO, Fla. (AP) -- For the second time in more than a month, a lawsuit challenging Florida's so-called "don't say gay" legislation restricting teaching on gender identity and sexual orientation in schools has been dismissed by a federal judge.

U.S. District Judge Wendy Berger in Orlando on Thursday dismissed a lawsuit brought by LGBTQ students, parents and their families -- as well as several civil rights groups -- and refused their request for a preliminary injunction to stop the law from being implemented. The judge gave the plaintiffs until Nov. 3 to file an amended lawsuit if they desired.

The lawsuit in Orlando named as defendants several central Florida school boards charged with implementing the law, which bans lessons on sexual orientation and gender identity in kindergarten through third grade as well as material that is not deemed age-appropriate. The lawsuit claimed the law had violated the plaintiffs' constitutional rights by chilling their ability to talk about their LGBTQ families in school settings. The judge disagreed.

"Plaintiffs have not directed this Court to any fact that would lead a reasonable person to believe that the law prohibits students from discussing their families and vacations at school or even on a school assignment, or that it would prohibit a parent from attending a school function in a 'pride' t-shirt or generally discussing their family structure in front of other people," wrote Berger, a nominee of former President Donald Trump.

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In response to concerns by the parents of a nonbinary middle school student who were plaintiffs and worried the law would encourage more bullying, the judge expressed sympathy. But Berger added, "it is simply a fact of life that many middle school students will face the criticism and harsh judgment of their peers."

"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 judge wrote.

Earlier this month, a federal judge in Tallahassee dismissed a similar challenge to the law. In both lawsuits, the judges questioned the legal standing of the plaintiffs, saying they had failed to specifically identify how the law had harmed them.

A report released in August by the Human Rights Campaign, one of the nation's largest LGBTQ advocacy groups, and the Center for Countering Digital Hate said that hateful references to gays, lesbians and other LGBTQ people surged online after Florida's Republican-dominated legislature passed the bill. The law was championed by Gov. Ron DeSantis, a Republican.

Civil rights groups that had helped the families file the lawsuit called the judge's decision "wrong."

"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,'" said Kell Olson, staff attorney at Lambda Legal, a civil rights group focused on LGBTQ rights. "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."