Judge Wendy Berger—a Federalist Society endorsed district judge of the United States District Court for the Middle District of Florida appointed by former Republican President Donald Trump—upheld Florida's "Don't Say Gay" law.
In striking down a challenge brought by a group of LGBTQ+ students and their families, Lambda Legal, the Southern Legal Counsel and the Southern Poverty Law Center who had expressed concerns about an increase in bullying since the law went into effect, Berger said that bullying is simply "a fact of life."
She said:
“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.”
Florida’s Republican-sponsored Parental Rights in Education bill, or H.B. 1557, was signed into law by Republican Governor Ron DeSantis. The law, colloquially known as the “Don’t Say Gay” law, aims to “reinforce the fundamental right of parents to make decisions regarding the upbringing and control of their children in a specified manner.”
The law wants to prohibit “a school district from encouraging classroom discussion about sexual orientation or gender identity in primary grade levels or in a specified manner” and authorizes parents to “bring an action against a school district to obtain a declaratory judgment that a school district procedure or practice violates certain provisions of law.”
Berger justified upholding the law, saying the plaintiffs lacked “any fact” that the bill restricts people from living their lives as they see fit.
This justification was criticized by Lambda Legal staff attorney Kell Olson, who said Berger's decision was “wrong on the law and disrespectful to LGBTQ+ families and students" and stressed that the move “sends a message of shame and stigma that has no place in schools and puts LGBTQ+ students and families at risk."
She added:
“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.’"
“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.”
Many have reacted angrily to Berger's decision to uphold the law.
Berger's dismissal marks the second time this month that an attempt to challenge the "Don't Say Gay" law has been struck down.
A federal judge in Talahassee also questioned the legal standing of the plaintiffs, saying they had failed to provide specific proof that the law had harmed them.
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