Trump-appointed judge presiding over Florida’s ‘Don’t Say Gay’ lawsuit defended state’s same-sex marriage ban

Former solicitor general defended state’s ban in 2014, which a judge struck down as ‘an obvious pretext for discrimination’

A group of Florida advocates, LGBT+ students and their families have filed a federal lawsuit against the state’s Republican Governor Ron DeSantis and school officials to block the so-called “Don’t Say Gay” law signed into law this week.

The 80-page complaint filed in US District Court on 31 March argues that the law provokes an unconstitutional attempt to “to stigmatize, silence, and erase LGBTQ people in Florida’s public schools.”

The “Parental Rights in Education” Act – named “Don’t Say Gay or Trans” by its opponents – broadly prohibits “classroom discussion about sexual orientation or gender identity” in kindergarten through third grade “or in a manner that is not age-appropriate or developmentally appropriate for students” in other grades.

“This effort to control young minds through state censorship – and to demean LGBTQ lives by denying their reality – is a grave abuse of power,” according to the lawsuit, which alleges violations of the First and Fourteenth Amendments, as well as federal provisions against discrimination on the basis of sexual orientation and gender identity under Tile IX of the Education Amendments of 1972.

But the case – represented by a powerhouse group of civil rights attorneys – has landed in the courtroom of US District Judge Allen Winsor, an appointee of former president Donald Trump who has repeatedly defended the state’s attempts to ban same-sex marriage, and whose court arguments have been dismissed by another judge as “an obvious pretext for discrimination.”

The law undermines First Amendment protections by applying punitive restrictions on classroom discussion and runs afoul of the 14th Amendment’s equal protection provisions by explicitly singling out sexual orientation and gender identity for discrimination, according to the lawsuit.

Those challenges now will be considered by a former solicitor general who fought in court to protect Florida’s ban on same-sex marriage, underscoring the challenges in place after the Trump administration and congressional Republicans reshaped the federal judiciary.

Florida’s statutory ban on same-sex marriage was implemented in 1977. In 2008, voters approved a constitutional amendment banning both same-sex marriage and civil unions.

Two separate cases representing 10 same-sex couples who sought to have their marriages recognised by the state were consolidated and heard in US District Court in 2014.

As solicitor general under then-attorney general Pam Bondi, Windsor and Bondi argued that there is a “clear and essential connection between marriage and responsible procreation and childrearing,” arguing that same-sex couples have no fundamental right to marriage, as marriage is deemed fundamental because of “its link to procreation”.

“The promotion of family continuity and stability is a legitimate state interest,” according to the state’s argument. “Florida’s marriage laws, then, have a close, direct, and rational relationship to society’s legitimate interest in increasing the likelihood that children will be born to and raised by the mothers and fathers who produced them in stable and enduring family units.”

The brief claimed that “disrupting Florida’s existing marriage laws would impose significant public harm,” a statement that sparked a wave of criticism aimed at the Florida attorney general. Winsor asserted that the brief referenced federal intervention in state law.

The state’s arguments were rejected by US District Judge Robert Hinkle, who wrote in 2014 that the state’s ban will seem like an “obvious pretext for discrimination” just as laws banning interracial marriages appear today.

The US Supreme Court’s landmark 5-4 ruling in Obergefell v Hodges in 2015 effectively legalised same-sex marriages across the US, asserting that the Constitution provides a fundamental right of same-sex couples to marry as those of the opposite sex through the 14th Amendment. (“They ask for equal dignity in the eyes of the law,” the ruling states. “The Constitution grants them that right.”)

In 2018, the Leadership Conference on Civil and Human Rights urged senators to reject Winsor’s confirmation to the bench, calling him a “conservative ideologue who has attempted to restrict voting rights, LGBT equality, reproductive freedom, environmental protection, criminal defendants’ rights, and gun safety” and lacks the “neutrality and fair-mindedness necessary to serve in a lifetime position as a federal judge.”

He was confirmed by the US Senate in 2019 by a near-party-line vote of 54-44, with all Republicans and one Democrat – West Virginia’s Joe Manchin – voting in support.

More than one-third of the former president’s appellate court appointments has a “demonstrated history” of anti-LGBT+ bias, according to a 2019 report from Lambda Legal Defense and Education Fund.

Civil rights groups and the US Department of Justice are closely watching dozens of bills advancing in state legislatures this year aimed at LGBT+ Americans, the majority of which target transgender youth and school curriculums.

This year’s unprecedented legislative action against transgender people already outpaces the number of measures filed in 2021, and has nearly doubled within just two years. Legislation targeting transgender people has surged from 18 bills in 2018 to more than 150 in 2022.

In 2021, nine states banned transgender athletes from participating in sports that match their gender. This year, at least four similar bans were signed into law or passed through state legislatures in Arizona, Kentucky, Oklahoma and Utah in March alone.

Following the passage of Florida’s “Parental Rights in Education Act”, Republican legislators in Georgia and Louisiana filed similar bills.

The Justice Department issued a letter to all state attorneys general this week reminding them of federal constitutional and statutory provisions that protect transgender people from discrimination.

“The Department of Justice is committed to ensuring that all children are able to live free from discrimination, abuse and harassment,” Assistant Attorney General Kristen Clarke for the Justice Department’s Civil Rights Division said in a statement.

The letter “reaffirms state and local officials’ obligation to ensure that their laws and policies do not undermine or harm the health and safety of children, regardless of a child’s gender identity,” she said.

Florida Governor Ron DeSantis signs the ‘Parental Rights in Education Act’ into law on 28 March, 2022. (AP)

Florida’s law – which also allows families to sue school districts for perceived violations – does not define “instruction” or age appropriateness, potentially leaving its interpretation open to bans on discussing LGBT+ people, history and events in curriculum, or students’ families, or questions from students about any of those issues.

“This is a law that is going to be impossible to comply with,” said Cathryn Oakley, senior counsel and state legislative director with the Human Rights Campaign.

The law and similar measures – what she called the result of a “collision” of growing efforts to attack LGBT+ people and an authoritarian movement to undermine schools – are “recklessly hurting these kids or intentionally hurting these kids” by appealing to a “very specific group of folks they’re hoping will help them with national ambitions, this super far-right element of Republican primary voters.”

“Both of those movements are extremely misguided … and they’re colliding in Florida,” she said during a video press conference on 1 April. “Neither of them are in service of the needs of America’s youth and how deeply, deeply harmful that is.”

Cory Bernaert, a kindergarten teacher in Florida who is LGBT+, said the broad scope of the law makes it unclear whether he can even answer his student’s questions or allow students to discuss their own LGBT+ families without facing legal scrutiny.

“There can be a very fine line between what a parent might consider discussion … and instruction,” he said. “These conversations are happening whether we want them to or not, and it’s OK for them to happen … This law is so unclear as to what can happen to me if I am having those discussions with my kids.”