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First lawsuit filed against ‘Don’t Say Gay’ law in Florida

Complaint filed days after Gov. DeSantis signed measure

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A lawsuit was filed days after Gov. Ron DeSantis signed the "Don't Say Gay" measure into law.

Mere days after Florida Gov. Ron DeSantis signed into law the “Don’t Say Gay” bill, the first lawsuit against the measure has emerged, asserting the statute “would deny to an entire generation that LGBTQ people exist and have equal dignity.”

Among the lawyers who signed the complaint ā€” filed Thursday before the U.S. District Court of the Northern District of Florida ā€” was Roberta Kaplan, who rose to fame for successfully arguing against the anti-gay Defense of Marriage Act before the U.S. Supreme Court in 2013, as partner at the New York-based law firm Kaplan Hecker & Fink LLP.

“Over time and continuing today, our nation has strived to make good on its promise that everyone is entitled to be treated with equal dignity under the law,” Kaplan said in a statement. “That is true when it comes to LGBTQ Americans, who now have the constitutional right to identify openly as LGBTQ, to marry, and to form families with children.”

Other lawyers who signed the complaint against the “Don’t Say Gay” bill, known as HB 1557, are Christopher Stoll, senior staff attorney with the National Center for Lesbian Rights, and Elizabeth Schwartz, a Miami-based attorney.

“This effort to control young minds through state censorship ā€”and to demean LGBTQ lives by denying their reality ā€” is a grave abuse of power,” the lawsuit says.

Under the “Don’t Say Gay” bill, schools for children in kindergarten through grade 3 may not engage in ā€œinstructionā€ about sexual orientation and gender identity, or generally throughout the education system ā€œin a manner that is not age-appropriate or developmentally appropriate for students.ā€ Although the new law allows for internal review and resolution if a parent brings a complaint against the school for violating the measure, the ā€œDonā€™t Say Gayā€ bill also empowers a parent of a student who feels the law was violated to ā€œbring an action against a school districtā€ in court to seek damages.

A lawsuit was expected soon after DeSantis signed the “Don’t Say Gay” bill into law amid discussion about the various legal vulnerabilities of the measure. The complaint, declaring the new law “piles one violation on top of another,” makes its primary case based on free speech and equal protection principles, by saying the measure seeks “to censor discussions of sexual orientation or gender identity that recognize and respect LGBTQ people and their families.” Other violations cited in the complaint are based on due process protections as well as discrimination against LGBTQ people based on sex stereotypes, which the Supreme Court has ruled is unlawful in the case of Bostock v. Clayton County.

In a clear nod to the precedent set by the 1996 decision in Romer v. Evans, which determined laws against animus, including those against gay people, are unconstitutional, the complaint says the “Don’t Say Gay” law is clearly the product of animus toward Floridaā€™s LGBTQ community.

“The billā€™s sponsor in the Senate has stated that the law is meant to prohibit discussion of sexual orientations and gender identities that do not comport with Floridaā€™s supposed ‘core belief systems and values,” the lawsuit says. “He has also stated that the bill is intended to prevent students ā€œcoming out in schoolā€ to their peers from being treated as ‘celebrities.’ The premise of these statements is fear that LGBTQ students might live their true identities in school and be met with acceptance rather than state-sanctioned hostility targeting their protected characteristics.”

Plaintiffs in the lawsuit are Equality Florida, a state LGBTQ organization, and Family Equality, a nationwide group that focus on LGBTQ parents and families. Other plaintiff are students, such as one gay student identified as “M.A” who set up a gay-straight alliance in his school, including Dan and Brent VanTice, a same-sex couple who are parents of two first-grade boys who go to public school in the area; and Hatcher Powderly, a teacher who seeks to inform her lessons with LGBTQ identity and history.

ā€œAlready, our children have told us that they are afraid that they will not be able to talk about their family at school,ā€ Dan and Brent VanTice said in a joint statement. ā€œWe are heartbroken that our children are already feeling isolated and stigmatized by this law.ā€

The lawsuit speculates numerous ways schools could be subjected to lawsuits from a parent who objects to LGBTQ identities coming up in some way in classroom settings, which could be any number of ways other than planned curriculum.

“Can students askā€” and teachers answerā€”questions about historical events involving LGBTQ people?” the complaint says. “Would H.B. 1557 ban a teacher from discussing gay-rightsā€™ decisions, like Bostock v. Clayton County, 140 S. Ct. 1731 (2020), where the Court held that LGBTQ persons cannot be discriminated against in employment? If a student writes a paper in which they discuss their gender identity or sexual orientation ā€” and relate it to their argument ā€” could a teacher not grade it? If the teacher did grade it, would they be prohibited from commenting on any aspect of the paper or discussing it with the student, thus leaving LGBTQ students at a systematic educational disadvantage?”

Proponents of the “Don’t Say Gay” bill have defended the measure by erroneously saying it simply prohibits sex education for K-3 children or would only prohibit school curriculum on sexual orientation or gender identity, even though there’s no limiting principle in the measure restricting its reach. In fact, Republican lawmakers during the legislative process for the measure rejected an amendment proposed by Democrats that would enumerate the prohibition in the bill was limited to discussion on “sexual activity.”

Imani Rupert-Gordon, executive director of the National Center for Lesbian Rights, said in a statement the “Don’t Say Gay” measure is “discriminatory law” and “threatens the decades of progress weā€™ve made in creating safer schools for everyone.”

ā€œWhile this law will endanger all students, it will be particularly damaging to LGBTQ students and LGBTQ parents,” Rupert-Gordon said. “We are filing this challenge only days after the bill was signed into law because the harms it is causing are already so incredibly clear. Every young person deserves to be safe at school and we will fight unconscionable laws like this until that is true for every student.ā€

The Washington Blade has placed a request with the office of Florida Attorney General seeking comment on the complaint.

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Florida

Professor at Baptist university in Virginia found dead in Florida gay saunaĀ 

Orlando police say cause of death undetermined

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A beloved professor of psychology at Averett University, a private Baptist university in Danville, Va., was found dead on March 16 of unknown causes at the Club Orlando, a popular sauna and bathhouse for gay men located in Orlando, Fla.

University officials said David Hanbury, 37, an Associate Professor of Psychology who taught at the university since 2015, was in Orlando attending a conference of the Southern Psychological Association and had initially been reported missing by family members before he was found deceased.

Orlando police told USA Today the cause of death had not been determined but the death ā€œdoes not appear suspicious at this time.ā€ USA Today reports that police said their investigation into the death was ā€œactive and ongoing.ā€

A spokesperson for the Orange County, Fla., Medical Examiner told the Washington Blade it would take about 90 days for the completion of blood work and toxicology tests to confirm the cause of death in a case like this, where there were no obvious signs of injury or illness.

Cassie W. Jones, Associate Vice President of University Marketing and Communications at Averett University, declined to disclose whether Hanbury self-identified as gay in response to an inquiry from the Blade

ā€œAs an employer, we cannot comment on our employeesā€™ personal matters,ā€ Jones said. But when asked if the university would have continued to treat Hanbury with respect and support his tenure at the university if he had come out as gay, she said ā€œabsolutelyā€ in an email response to Blade questions.

ā€œDr. David Hanbury was a dear professor, colleague and friend whose influence was far reaching,ā€ Jones said in a March 21 message to the Blade, ā€œWe send our affection, condolences, and prayers of support to Dr. Hanburyā€™s family, friends and all others upon whom he had a lasting impact.ā€

The Averett University website shows that it has a policy of nondiscrimination that includes the categories of sexual orientation and gender identity among other categories such as race, religion, and ethnicity. The website also shows that the university has an LGBTQ student group called the Gender and Sexuality Alliance or GSA group. 

Jones said the admiration and longstanding support of Hanbury from his fellow professors and students was reflected in a March 18 memorial gathering for him on campus.

ā€œNearly 250 students, faculty, staff, and community members joined as one Averett family, united in grief and sorrow, as we gave thanks for the remarkable life and influence of Dr. Hanbury on our lives and on the University,ā€ Jones said.

ā€œAverett University is committed to inclusion and belonging for all who learn, work and visit our campus,ā€ Jone told the Blade. ā€œOpenness and inclusivity are embedded in our institutionā€™s core values, and we know our diversity makes us stronger.ā€

The Baptist Standard, an independent newspaper  that reports on the Baptist Church, reported in a May 9, 2011, story that the Baptist General Association of Virginia severed ties with Averett University in 2005 over a disagreement with the universityā€™s position on homosexuality. Other news reports at the time said the Baptist organization objected to the universityā€™s support for a gay student group.

Jones, in her message to the Blade, said Averett University currently ā€œis a part of the Baptist General Association of Virginia family of educational partners.ā€ She added, ā€œWe are aligned in our commitment to meet students wherever they are in their faith journey, and welcome those of all faiths or no faith.ā€  

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Florida

Settlement and clarification reached in Fla. ‘Donā€™t Say Gay’ law

Republican Gov. Ron DeSantis signed statute in 2022

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A protest against Florida's 'Don't Say Gay' law in 2022. (Photo courtesy of Jack Petocz)

A settlement reached with the Florida State Board of Education, Florida Department of Education and various school districts and the attorneys and plaintiffs clarifies what is allowed in Florida classrooms under the stateā€™s controversial ā€œParental Rights in Educationā€Ā law colloquially referred to as the ā€œDonā€™t Say Gayā€ law.

The plaintiffsā€™ lawyers at Kaplan Hecker & Fink LLP and the National Center for Lesbian Rights filed the agreement with the 11th U.S. Court of Appeals on Tuesday. The agreement effectively nullifies the most dangerous and discriminatory impacts of the law, and makes clear that the law must be applied neutrally and is no license to discriminate against or erase LGBTQ+ families.

Cameron Driggers and Jack Petocz, who led the statewide student protest against the ā€˜Donā€™t Say Gayā€™ law in March 2022, reacted in a text message to the Washington Blade saying:

ā€œLGBTQ+ students and allies are breathing a sigh of relief today in response to the news that litigation has successfully mediated some of the most extreme aspects of Gov. DeSantisā€™ ‘Donā€™t Say Gay’ legislation. Just about two years ago, we led a statewide school walkout all across the state of Florida in response to that bill. We knew then that it infringed on the basic civil liberties of students and teachers and we look forward to future challenges to other pieces of authoritarian legislation.ā€

ā€œThe settlement restores the ability of students, teachers and others in Florida schools to speak and write freely about sexual orientation and gender identity in class participation and schoolwork,ā€ the legal teams noted in a statement. ā€œIt also restores safeguards against bullying on the basis of sexual orientation and gender identity, and reinstates Gay-Straight Alliances (GSAs). Critically, the settlement also requires the State Board of Education to send todayā€™s agreement to every school district, and to make clear that the settlement reflects the considered position of the state of Florida on the scope and meaning of this law.ā€ the statement continued.

Specifically, the historic settlement agreement clarifies the following:

  • Classroom references. The law does not prohibit references to LGBTQ+ persons, couples, families, or issues, including in literature, in classroom discussion (such as student-to-student speech or teachers responding to studentsā€™ questions), in studentsā€™ academic work product or teachersā€™ review of the same, in teachers identifying same-sex or transgender spouses or partners, or in any other context in which a teacher is not ā€œinstructingā€ on the subject of sexual orientation or gender identity.
  • Nondiscrimination.Ā The law does not target LGBTQ+ persons, couples, families or issues.Ā Rather, it requires neutrality and prohibits ā€œclassroom instructionā€ on the subjects of sexual orientation or gender identity, whether the subject addresses heterosexuality, homosexuality, bisexuality, cisgender identities, transgender identities or otherwise. It would violate the law, then, to instruct that heterosexuality is superior to other sexualities, or that cisgender identities are superior to transgender identities.
  • Anti-bullying and acceptance. The law does not prohibit instruction or intervention against bullying on the basis of sexual orientation or gender identity, nor does it require the removal of safe space stickers or elimination of safe space areas for the benefit of LGBTQ+ persons.
  • Extracurricular activities.Ā The law does not prohibit Gay-Straight Alliances, including student attendance or participation by teachers or other faculty members.Ā The law also does not prohibit book fairs that include LGBTQ+ focused books, musicals or plays with LGBTQ+ references or characters, participation and expression by LGBTQ+ persons in other extracurricular events like school dances, or the wearing of clothing that is affiliated with LGBTQ+ persons or issues or that does not conform with oneā€™s perceived gender identity.
  • Library books. The law does not apply to library books, so long as those books are not being used in the classroom to instruct on the subjects of sexual orientation or gender identity. 
  • Third parties. The law does not apply to non-school-personnel, including parents, other family members, and guest lecturers, so long as the school is not delegating to such third party the role of providing classroom instruction on the subjects of sexual orientation or gender identity.

ā€œWe made a promise to LGBTQ+ families, students and educators across the state to ensure that they received equal dignity under the law, and to protect our schools from a censorship agenda that harms the education system as a whole,ā€ saidĀ Equality Florida Executive Director Nadine Smith.Ā ā€œFlorida has already endured nearly two years of book banning, educators leaving the profession and safe space stickers being ripped off of classroom windows in the wake of this law cynically targeting the LGBTQ+ community.Ā This settlement is a giant step toward repairing the immense damage these laws and the dangerous political rhetoric has inflicted on our families, our schools and our state.Ā The message to school districts, superintendents and teachers alike is clear: Protect every student and respect every family.ā€

In early 2022, Republican Gov. Ron DeSantis signed House Bill 1557, commonly known as the ā€œDonā€™t Say Gayā€ bill. The plaintiffs sued the next day, alleging that the law was impermissibly vague, was obviously motivated by hostility to LGBTQ people and families and created an enforcement system that enabled discrimination and discouraged efforts to fight it. The plaintiffs claimed that the law violated their rights to equal protection, due process, and free speech. The plaintiffs litigated aggressively, and engaged in months of negotiations with the stateā€™s lawyers to forge Monday’s historic settlement.

ā€œThis settlement is a huge victory for our community, both in Florida and nationally. It not only reverses the censorship and intimidation created by Floridaā€™s ‘Donā€™t Say Gay or Trans’ law, it codifies important new protections that were not previously clearly established, such as the right of teachers and staff to talk about LGBTQ people, to put safe space stickers in their classrooms, and to be open about their own LGBTQ identities or same-sex partners, just as straight teachers are able to be,ā€ said NCLR Legal Director Shannon Minter in a phone statement to the Blade. ā€œI am thrilled to be part of this historic moment, which is a strong sign that the tide of anti-LGBTQ hatred and persecution is turning, thanks to the hard work of so many.ā€ 

Human Rights Campaign National Press Secretary Brandon Wolf issued the following statement:

ā€œThis is more evidence: The tide is turning on the anti-LGBTQ+ agenda. In state legislatures and courtrooms in Florida and beyond, discriminatory policies are starting to collapse. The DeSantis administration was forced to acknowledge that their vague, broad law was having sweeping consequences. And this settlement makes clear that every student deserves a safe, welcoming school environment where their families are treated with the respect that they deserve ā€” and that what applies to LGBTQ+ people must apply to others equally. Thank you to the legal team and courageous plaintiffs for challenging this discriminatory law.ā€

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Florida

Fla. DMV: ‘Misrepresenting’ gender on drivers licenses is fraud

HRC, Equality Florida condemn decision to rescind previous policy

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(Washington Blade photo by Michael K. Lavers)

BY ERIN REED ā€” According to a letter submitted by an anonymous source on Monday, the Florida Department of Highway Safety and Motor Vehicles has rescinded the policy that allowed transgender individuals to update the gender marker on their driverā€™s licenses. 

The letter, written by Deputy Executive Director Dave Kerner, states that gender will be interpreted as ā€œbiological sex.ā€ Furthermore, the letter declares that any person ā€œmisrepresentingā€ their gender marker would be guilty of fraud, facing civil and criminal penalties and revocation of licensure.

The letter, apparently sent out on Jan. 26, asserts that ā€œgenderā€ is synonymous with ā€œbiological sex,ā€ and argues that gender identity is ā€œneither immutable nor objectively verifiable.ā€ It suggests that permitting trans individuals to update their gender markers on their driverā€™s licenses would ā€œprevent the state from enforcing its laws.ā€ These laws include bans on trans individuals using the bathroom of their gender identity and laws targeting adult medical care.

You can view the full copy of the letter here:

The move marks a significant escalation and seems to have been initiated unilaterally by the department. This action is in line with other unilateral measures taken by the executive branch in Florida and other states. These include the Florida Board of Medicineā€™s ban on trans care, Virginia Gov. Glenn Youngkinā€™s directive through the Board of Education to ban trans bathroom usage in schools, and Missouri Attorney General Andrew Baileyā€™s efforts to target adult trans care via the rule-making process. However, none of these examples previously involved driverā€™s licenses. If upheld, Florida would become the first state to prohibit driverā€™s license changes under criminal penalty for trans individuals.

The ramifications of this rule could be far-reaching. All trans individuals in the state with Florida driverā€™s licenses not aligning with their ā€œbiological sexā€ might immediately be in possession of a fraudulent license. The state could seek to suspend or revoke the licenses of trans individuals under this policy. Moreover, during traffic stops involving trans individuals, they could face legal challenges with police officers if the officers believe the driverā€™s license ā€œmisrepresentsā€ their ā€œbiological sex.ā€

State Rep. Anna EskamaniĀ appeared to confirmĀ that computer systems were no longer accepting gender changes at FLHSMV offices:

This development coincides with the consideration of two bills in Florida that aim to prohibit driverā€™s license changes through the legislative process: House Bills 1233 and 1639. These bills could require all Floridians to sign ā€œbiological sex affidavitsā€ when renewing or updating their driverā€™s licenses. The policy could be a strategy to deter trans Floridians, aware of the bills, from quickly updating the gender marker on their driverā€™s licenses before their passage. Notably, Florida driverā€™s licenses typically have long expiration periods, often lasting eight years post-issuance.

Under this policy, trans individuals in Florida could face considerable challenges in daily life. Many have already left the state, and of those remaining, 80 percent reportedly wish to leave. This policy could instantly criminalize trans individuals who drive in the state with updated gender markers. It would compel trans people to disclose their identity in any situation requiring a driverā€™s license. Additionally, it would provide Florida a means to enforce its bathroom laws, which criminalize trans individuals for using bathrooms that align with their gender identity in many public spaces.

Nadine Smith, executive director of Equality Florida, issued the following statement:

ā€œThe DeSantis administrationā€™s obsession with scapegoating transgender Floridians has escalated into an outrageous attack that further erodes freedom and liberty in our state. This cruel policy threatens transgender Floridians with civil and criminal penalties and blocks them from obtaining the critical government-issued identification necessary to continue their daily lives. Transgender people have always existed in every culture on every continent and always will. In Florida, tens of thousands of people have legally updated their gender marker on their driverā€™s license or ID. They carefully followed the rules to ensure their identification accurately reflects who they are, and they trusted this process. Now, an abrupt policy reversal has thrown their lives into chaos. The cruelty of this kind of government overreach and intrusion should alarm every Floridian. These reckless and hateful policies are intended to make the transgender community feel unsafe and unwelcome in Florida and to bully them out of public life entirely. 

We know this is a devastating development, and we are working with our coalition partners, our grassroots volunteers, and our legal groups to figure out what options are available to fight back.ā€ 

The Human Rights Campaign reacted to this latest attack on the rights of trans Floridians in an emailed statement by HRC President Kelley Robinson:

ā€œFor years, transgender people have warned of radical anti-LGBTQ+ forcesā€™ true aim: to abuse governmental power to take away our freedoms and drive trans people out of public society,ā€ said Robinson. ā€œFrom AG Paxton hunting for private medical information of transgender children, to Floridaā€™s assault on identification documents, to Midwest lawmakers saying the quiet part out loud, these right wing extremists are no longer hiding the ball. They want to humiliate, harass, and use policy to eliminate transgender people from public life. But you cannot legislate away the community. Transgender people are powerful. They are our friends, neighbors, and family members. And we will stand arm-in-arm with them to fight back against this sinister agenda.ā€

Florida currently occupies the most dangerous level on the Transgender Legislative Risk Assessment Map, ā€œDo Not Travel.ā€ The stateā€™s oppressive laws have drawn similar travel advisories from HRC and Equality Florida. Should this policy be enforced, the stateā€™s trans population will find it even harder to move freely and could come into conflict with law enforcement and criminal penalties just for having documents that match their gender identity. The policy appears to be the latest attempt at putting trans ā€œeradication,ā€ championed at CPAC, into action within the borders of Florida.

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Erin Reed is a transgender woman (she/her pronouns) and researcher who tracks anti-LGBTQ+ legislation around the world and helps people become better advocates for their queer family, friends, colleagues and community. Reed also is a social media consultant and public speaker.

Follow her on Twitter (Link)

Website here: https://www.erininthemorning.com/

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The preceding article was first published at Erin In The Morning and is republished with permission.

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