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.”
\u201cTerrifying decision out of Florida.\n\nFlorida's Don't Say Gay law is allowed to stay in effect. It uses a private cause of action like Texas' SB8 abortion bill.\n\nMultiple bills are coming out using similar measures to ban trans people from teaching, pediatrics, detrans trans kids.\u201d— Erin Reed (@Erin Reed) 1666388569
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.
\u201cThe cruelty isnt subtle anymore.\u201d— Good Trouble \u270a (@Good Trouble \u270a) 1666802558
\u201c"[M]iddle school children bully & belittle their classmates for a whole host of reasons [...] many of which have nothing to do with a classmate\u2019s gender identity.\u201d\n\nWho wants to bet this judge also says conservatives are being discriminated against?\nhttps://t.co/vTAg8DyrfJ\u201d— Penny ChickadeeBirch (@Penny ChickadeeBirch) 1666799395
\u201cThey\u2019re not gonna stop until we pick up the bricks again.\u201d— \ud81a\udd10 OmegaDyke \ud81a\udd10 (@\ud81a\udd10 OmegaDyke \ud81a\udd10) 1666398369
\u201cThis will now be the way states can ban certain types of people from being a member of society. This is abhorrent and something fascists do.\u201d— Healthcare \ud83c\uddfa\ud83c\uddf8Voter \ud83c\uddfa\ud83c\udde6 (@Healthcare \ud83c\uddfa\ud83c\uddf8Voter \ud83c\uddfa\ud83c\udde6) 1666451316
\u201cFlorida is now a fine example of autocracy.\u201d— peggy oconnor (@peggy oconnor) 1666454512
\u201cthe judge who issued this order, pedoralist society member wendy berger, should fear for her life whenever she walks out of her house, for this is what she has done to countless gay and trans kids in florida.\u201d— gabagh\ud83d\udd05ul eater\ud83d\udc7b \ud83c\uddfa\ud83c\udde6\ud83e\udd91\ud83d\udc0c\ud83d\ude82\ud83c\udfd7\ud83e\udd20\ud83d\udcc8\ud83d\udc35\u26d3 (@gabagh\ud83d\udd05ul eater\ud83d\udc7b \ud83c\uddfa\ud83c\udde6\ud83e\udd91\ud83d\udc0c\ud83d\ude82\ud83c\udfd7\ud83e\udd20\ud83d\udcc8\ud83d\udc35\u26d3) 1666515120
\u201cTrump-appointed judge Wendy Berger has upheld Florida\u2019s Don\u2019t Say Gay law and claimed bullying is \u201ca fact of life\u201d, which she, in effect, endorses.\n\nhttps://t.co/LLIxH9cRqI\u201d— \ud83c\udff3\ufe0f\u200d\ud83c\udf08 Chuck Hamilton (he/him/his) #WWJHD \ud83c\udff4\u200d\u2620\ufe0f (@\ud83c\udff3\ufe0f\u200d\ud83c\udf08 Chuck Hamilton (he/him/his) #WWJHD \ud83c\udff4\u200d\u2620\ufe0f) 1666820512
\u201cStarting to think conservatism is just an unending series of intentional cruelty designed to uphold a protected class of mostly white, male, straight/cisgender people. https://t.co/AeFmEaUfoQ\u201d— Another Fucking Guy (@Another Fucking Guy) 1666801463
\u201cThis one is for those who think that ANYTHING the GOP signs into law will be struck down by the courts. The courts will only serve as a rubber stamp for their agenda.\u201d— Azalea Serafina Duquesne-Buck (@Azalea Serafina Duquesne-Buck) 1666393890
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.
Glen Powell/NBC
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