Judge dismisses Don’t Say Gay legal challenge – but it’s not the end of the road

An LGBTQ+ protester carries a sign reading: 'Oppose Don't Say Gay'

A federal judge has dismissed a challenge to Florida’s notorious Don’t Say Gay law – but it’s not the end of the road for the lawsuit.

Don’t Say Gay, which went into effect in July 2022, bans public school teachers from engaging in “classroom discussion about sexual orientation or gender identity” and has been slammed for the harm it is doing to queer children in the state.

A recent challenge to the law has been dismissed due to legal technicalities.

LGBTQ+ rights groups Equality Florida and the National Center for Lesbian Rights, along with Kaplan Hecker & Fink LLP, attorney Elizabeth Schwartz, and multiple students, educators and families in Florida filed a lawsuit against the state over the law earlier this year.

They argued Don’t Say Gay is unconstitutional, discriminatory and “clearly the product of animus towards Florida’s LGBTQ+ community”.

But on Thursday (29 September), US district judge Allen Winsor issued a 25-page order dismissing their case, for now.

The lawsuit was thrown out on technicalities, as the judge found that the plaintiffs did not sufficiently lay out their legal standing to bring the case.

Ban on LGBTQ+ classroom instruction

This is in part due to the fact that Don’t Say Gay is widely seen to be “a solution in search of a problem”.

It bans “classroom instruction on sexual orientation or gender identity” in kindergarten through to third grade. However, there is no evidence that such “instruction” was happening before the law, officially known as the “Parental Rights in Education Act (HB 1577)”, was in place.

Winsor explained the case against the state was hard to prove, as much of the harm being done by Don’t Say Gay could not be attributed to the vaguely-worded legislation itself, but to the interpretation of it by school boards.

“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,” he 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.”

‘This fight is not done’

However, the judge gave the plaintiffs 14 days to refile the lawsuit.

In a statement, Equality Florida said: “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.”