On Thursday, a group of plaintiffs filed a federal lawsuit against Florida’s “don’t say gay” measure, or H.B. 1557, which Gov. Ron DeSantis signed into law three days ago. The lawsuit—which was brought by a group of students, parents, and teachers, along with Equality Florida—argues that the gag order violates free speech, due process, and equal protection. H.B. 1557, the suit declares, “would deny to an entire generation that LGBTQ people exist and have equal dignity. This effort to control young minds through state censorship—and to demean LGBTQ lives by denying their reality—is a grave abuse of power.”
It’s a strong argument, put forth by some of the nation’s top civil rights lawyers. But the lawsuit almost immediately hit a snag: It has been assigned to U.S. District Judge Allen Winsor, a Donald Trump appointee who is perhaps best known for defending Florida’s defunct ban on same-sex marriage. This assignment illustrates how Trump and Republicans stacked the deck against LGBTQ equality for decades to come by flooding the courts with reactionaries in just four years.
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The bigotry that drove H.B. 1557 to passage should be clear to anyone who simply reads the text of the bill. By its plain terms, the measure strictly limits “instruction” on “sexual orientation or gender identity” in every grade. This ban is absolute in grades K–3; in grades 4–12, all such “instruction” must be “age appropriate or developmentally appropriate”—terms that are not defined. The law allows parents to sue school districts for alleged violations, subjecting purported offenders to long, intrusive investigations. When parents win, they collect both monetary damages and attorneys’ fees. (If schools win, they collect nothing.) The obvious purpose of the bill is to chill a maximum amount of speech by frightening teachers out of discussing LGBTQ families, rights, or history in the classroom. One additional nasty effect is that it will prevent LGBTQ teachers and students from discussing the mere existence of their own families without fear of a lawsuit.
Thursday’s lawsuit, led by noted civil rights attorneys including Roberta Kaplan and Joshua Matz, identifies several flagrant constitutional flaws in this scheme. It abridges students’ right to receive information and express ideas at school, both of which are protected by the First Amendment. By doling out severe punishments on the basis of vague prohibitions, it “invites arbitrary and discriminatory enforcement,” running afoul of due process. The measure is “motivated by animus against LGBTQ students, families, and teachers of Florida,” which the Supreme Court has deemed an infringement upon equal protection. And it “humiliates” the children of same-sex couples by erasing their families from the classroom and subjecting them to “discrimination and disadvantage in Florida’s public schools.” This, too, is an equal protection violation.
It appears indisputably clear that, as the suit states, H.B. 1557’s overarching goal is “to target,” “demean,” and “belittle” LGBTQ families. But this challenge to the law has landed in the courtroom of a judge who himself has attempted to target, demean, and belittle LGBTQ families. As solicitor general of Florida from 2013 to 2016, Winsor fought to preserve the state’s ban on same-sex marriage. In the process, he persistently belittled same-sex couples and their children as less deserving of rights than heterosexual families.
Winsor’s 2014 briefs argued that outlawing same-sex marriage would promote “responsible procreation and childrearing” because “heterosexual couples are the only couples who can produce biological offspring.” Allowing same-sex couples to marry, he asserted, would disrupt “family continuity and stability” by diminishing “the likelihood that children will be born to and raised by the mothers and fathers who produced them in stable and enduring family units.” Excluding same-sex couples from marriage would preserve the primacy of “biological offspring” over adopted children—which was, allegedly, an important state interest.
As solicitor general, Windsor also credited the theory that allowing same-sex couples to wed would somehow spur opposite-sex couples to “produce children by accident” rather than intentionally, within wedlock. Withholding marriage from same-sex couples, he concluded, was necessary to “address unique challenges posed by the unique procreative potential between men and women.” Moreover, withholding the countless benefits associated with marriage—including survivor benefits and health insurance—was “rationally related” to achieving this goal. (How, exactly, does refusing to recognize a gay person’s spouse on their death certificate encourage opposite-sex couples to have children within wedlock? Winsor did not say.) Indeed, the justifications behind Florida’s ban were so compelling, he claimed, that invalidating the law would “impose significant public harm.”
Solicitors general may not agree with every position they take in litigation. But Winsor’s record reflects a profound hostility to equality, democracy, reproductive rights, and pretty much every other progressive ideal. A member of the Federalist Society since 2005, he defended multiple racial gerrymanders and voter suppression laws during his time in private practice. One such law delayed or denied voter registration to more than 76,000 Floridians, a disproportionate number of whom were Black. Another forced voter registration groups to shut down operations. Later, as solicitor general, Winsor defended a barbaric execution protocol, a capital sentencing scheme that violated the right to trial by jury, a drug testing requirement for families on welfare, and a gag law that barred doctors from discussing gun safety with parents.
Winsor’s résumé, in other words, is largely indistinguishable from literally hundreds of other Trump nominees. More than one-third of Trump’s nominees to the U.S. Court of Appeals had a history of opposing LGBTQ equality in court. So did a huge number of his district court nominees. Like Winsor, many of these individuals defended state bans on same-sex couples’ right to marry and have children. Others supported legislation designed to denigrate LGBTQ families while serving in elected office. Their records were filled with appalling rhetoric scorning these families as harmful to children and society. And it wasn’t just marriage: Many Trump judges opposed openly gay military service and LGBTQ nondiscrimination laws. It should go without saying that these same judges evinced egregious hostility to transgender equality as well.
Trump’s strategy was clear: Seed the federal judiciary with homophobic extremists who would roll back constitutional equality for LGBTQ people for the next half-century. The scheme is beginning to pay off. In recent years, 13 states have banned transgender girls from school sports, confident that their discriminatory laws will pass muster in the Trump-stacked judiciary. A handful of states have sought to ban gender-affirming health care for minors, and many more are considering such bills. Republican senators are openly criticizing Obergefell v. Hodges, testing the waters for a potential rollback of marriage equality. If Obergefell had come before the Supreme Court today instead of seven years ago, same-sex marriage would lose 6–3. The only thing potentially keeping the decision alive is likely conservative justices’ fear that overturning such a recent and popular precedent would spark a destructive backlash.
At least eight other states are currently considering laws that would outlaw LGBTQ-related speech from the classroom, including one that would jail teachers who violate it. This effort to erase LGBTQ families by depicting them as sexualized, unnatural, and aberrant has no end in sight. Just a decade ago, they may well have faced defeat in the federal judiciary. But Trump’s 234 judges have changed the game. It is a safe bet they will uphold most if not all of these stigmatizing gag orders. That is, after all, what they were put on the courts to do.
