Eight states censor LGBTQ topics in school. Now, a lawsuit is challenging that

As a 16-year-old junior in high school, Harper McGee had to fight for the ability to say “gay” on campus.

At the time, McGee and a friend were trying to create a Gay-Straight Alliance group at Lone Peak High School in Highland, Utah, in the fall of 2014. McGee wanted to have an organized place where students could talk about LGBTQ issues, but It wasn’t easy. School officials were concerned about the name because, as one of them said, it “include[d] a reference to human sexuality.”

Utah is one of eight states that has laws, sometimes called “no promo homo” laws, that limit how teachers can talk about LGBTQ issues with students, or forbid it altogether. While some teachers say the laws reflect parents’ concerns about discussing sex at school, some LGBTQ activists say they perpetuate a culture of fear among students who need support. And now, for the first time, a lawsuit is aiming to overturn one of them.

After a debate at a meeting of the Alpine District school board, the Gay-Straight Alliance was able to move forward. The first few weeks were rough — during Club Week at school, some students came to their booth just to laugh at them. And others were too shy to join. “This law creates such a climate of intimidation and silence and hostility … that it’s difficult to find teachers and students who are willing to come forward.” — Shannon Minter, legal director at the National Center for Lesbian Rights

But the club grew, and soon 15 to 20 people were coming to every meeting. Over the course of the next few months, McGee came out as pansexual and genderfluid and now uses the pronoun “they.” Having that community at school “made me realize that I don’t have to be afraid, I can be unabashedly me,” they said. “There are people who will accept me for who I am.”

In an attempt to improve the climate at school for students like McGee, the advocacy groups Equality Utah and the National Center for Lesbian Rights have brought a federal lawsuit to overturn Utah’s “no promo homo” law, which prohibits teachers from discussing LGBTQ issues with students. The suit claims that three school districts in Utah failed to protect the students from harassment or physical abuse at school. And just this week, they asked U.S. District Court Judge Dee Benson for an injunction that would block Utah from enforcing the law while the case is in progress.

Utah’s law and similar laws in seven other states were mostly passed in the late 1980s and 1990s around the time that AIDS was becoming a public health crisis. Most were based on the misconception that only gay people could contract and spread AIDS, according to Peter Renn, senior attorney at LGBTQ advocacy organization Lambda Legal.

The laws themselves range from state to state: in Alabama, Louisiana, Oklahoma, Mississippi, South Carolina and Texas, they pertain specifically to health courses, with most stating that teachers cannot instruct students on LGBTQ sexual health. In Oklahoma, the law requires that AIDS education include the false claim that “engaging in homosexual activity” is one of the behaviors “primarily responsible for contact with the AIDS virus.”

School districts in Arizona cannot use curriculum that “promotes a homosexual lifestyle,” while Utah teachers cannot participate in “the advocacy of homosexuality.” (When the laws were passed, “homosexual” was a blanket term for any LGBTQ person, which many LGBTQ leaders say is now outdated.)

In the absence of curriculum that addresses LGBTQ issues, some students in those states have created Gay-Straight Alliances, which are still allowed because they are run by students, not teachers. Regardless, the laws “create a culture of silence,” Troy Williams, executive director at at Utah-based LGBTQ organization Equality Utah, said. “It sends this message to LGBTQ-identified students that their impulse to love another human being is so shameful that we dare not speak its name in the classroom.”

‘A climate of intimidation and silence’

The San Francisco-based National Center for Lesbian Rights initially filed a lawsuit in October on behalf of Equality Utah and three unnamed students against the Utah State School Board along with the Cache, Weber and Jordan school districts. It claimed that educators in those districts failed to protect the students from harassment or physical abuse at school. The Utah State Board of Education declined to comment on the case.

The lawsuit is the first to try to tackle the laws, which are difficult to challenge, in part because people are afraid to come forward as plaintiffs, Shannon Minter, legal director at the NCLR, said.

“This law creates such a climate of intimidation and silence and hostility … that it’s difficult to find teachers and students who are willing to come forward,” he said.

LGBTQ students are already at an elevated risk for bullying and violence at school, and are less likely to attend class and finish high school, according to a 2015 report from the Gay, Lesbian and Straight Education Network.

Minter and other LGBTQ activists told the NewsHour Weekend that many educators are aware of this law in Utah. But even if some teachers do not know about it, “it becomes internalized and part of the DNA of the school system,” he said.

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Kimberlee Irvine, an 8th-grade English teacher at South Ogden Junior High, said the Utah law reflects the fact that many parents want to be in charge of “the teaching of morals and sexuality.” But it can also hinder her from doing her job, she said.

In 2013, her class was discussing a passage in which a character has two dads. A student raised his hand to ask if the reference to two dads was a “typo.” When something like that happens, “I lose teaching moments,” she said. “I had to skirt around the issue and not talk about it. … I thought, if I could just answer this, it would create understanding.”

Irvine said she was struck by the bravery of LGBTQ students who are open about their identity and wishes she could do more to support them. “I love my job. I don’t want to lose it. I want to help these kids function in the world, but I have these few topics that are forbidden and there’s nothing I can do about it,” she said.

Peyton Carter, who graduated from Alta High School in Draper, Utah, said this reluctance to speak about LGBTQ issues was notable even in his community, where he felt accepted as a gay man.

In high school, he would notice small signs of support — some teachers had “safe space” stickers outside their doors, and another teacher told students they couldn’t call something “gay” if they meant “stupid.” But a lot of others avoided the topic. “Teachers didn’t talk about it and then they didn’t have the issue,” he said.

In Alabama, a student-led movement to support LGBTQ youth

Like several other states, Alabama has a law that requires public schools’ sex ed programs reference an anti-sodomy law that has never been repealed, despite a federal ruling. The Supreme Court deemed such laws, which criminalized gay sex, unconstitutional in the 2003 case Lawrence v. Texas. But in Alabama, and other states that still have their anti-sodomy laws intact, the state requires that health teachers tell students that “homosexual conduct is a criminal offense.”

Mississippi’s state policy, which passed in 1998, also references “current state law” on “homosexual activity,” which was illegal in the state at the time. In Texas, whose anti-sodomy law was the focus of the Supreme Court case, educators must “state that homosexual conduct … is a criminal offense.”

LGBTQ activists in Alabama have criticized the state policy, along with Rep. Patricia Todd, a member of the Alabama House of Representatives and the only openly gay elected official in the state. Alabama students have protested the law at the Alabama state house, and Todd introduced a bill to rescind it in 2013. With little support from other lawmakers, the bill died in the education committee. “I can’t get any traction,” she said.

The law is “embarrassing” and “not factual,” and challenging it raises a larger, and controversial, conversation around what sex education should look like in Alabama, she said.

Todd plans to introduce another bill to rescind the law this year.

The Alabama Department of Education removed this language from its curriculum in July, defying the state law and deleting it from the department’s content standards, according to Michael Sibley, a spokesperson for the department.

Sibley also contended that the law’s reference to “criminal offense” is “legally wrong and no longer operative,” adding that Alabama schools “welcome all children and strongly encourages support from teachers regardless of their gender or orientation.”

Since there is confusion over whether the law is enforceable, many teachers in Alabama just avoid LGBTQ issues altogether, Ryan Thoreson, a fellow with the progressive group Human Rights Watch, said. In December, Human Rights Watch released a report on LGBT youth in schools for which the group interviewed teachers in Alabama and other states.

In Alabama, “[Teachers] would say, ‘I feel like I can’t teach what I’m supposed to teach under the law, but also I’m uncomfortable disobeying the law, so I’m just going to stay away from LGBT issues in the classroom,’” he said.

As the law remains in the state code, students and outside groups — mostly centered in cities like Birmingham or Huntsville — have mobilized to provide sexual education for LGBTQ students.

Raven Rice, 17, and a senior at Grissom High School in Huntsville, Alabama, came out as bisexual toward the end of middle school and joined the school’s Gay-Straight Alliance as a freshman. “We kind of just openly talked about everything, which was really refreshing,” she said.

Now, as the alliance’s president for the second year in a row, Rice dedicates one club meeting a year to sexual education. She always gives advance notice so members can choose not to attend, but “it’s one of the few meetings we have that [brings] everyone,” she said.

Rice will typically cover barrier methods of protection, how to prevent unwanted pregnancy, and basic anatomy. She also takes questions on common myths around sex. “If kids have any questions, me or my co-president will try to answer as best as we can,” she said. When it comes to sexual education, “most of what I know I’ve had to research myself … and a lot of other kids have done the same,” she said.

The club has grown in recent years, she said. “People are starting to join and openly be able to be who they are, and it’s had more influence in the school,” she said.

That kind of support makes a difference, Amanda Keller, director of the Magic City Acceptance Center in Birmingham — the only center for LGBT youth in the state — said. “Even having one teacher and one person who is comfortable coming forward and speaking up and being available to these youth makes all the difference,” she said.