A South Carolina law banning any discussion of same-sex relationships in public school health classes (except in the context of sexually transmitted diseases) is unconstitutional, a federal court said yesterday.
The South Carolina statute was part of the state’s 1988 Comprehensive Health Education Act. It was one of a spate of anti-LGBTQ laws passed in U.S. in the late 1980s and early 1990s, following the AIDS panic, as Lambda Legal Staff Attorney Peter Renn explained a few years back.
This year, on February 18, South Carolina Attorney General Alan Wilson issued an opinion (PDF) saying that a court would likely find the law unconstitutional. A high school Gender and Sexuality Alliance (GSA) group, plus the Campaign for Southern Equality and the South Carolina Equality Coalition, which include public school students among their members, then challenged the law in court (GSA v. Spearman). The National Center for Lesbian Rights (NCLR) and Lambda Legal fought on their behalf, along with private counsel Womble Bond Dickinson, Brazil & Burke, and law professor Clifford Rosky.
They argued that the statute violated the Equal Protection Clause of the 14th Amendment by discriminating against LGBTQ students. The law “singled out LGBTQ students for negative treatment and did not impose any comparable restriction on health education about heterosexual people. Any teacher who violated the provision was subject to dismissal,” they explained.
The U.S. District Court for the District of South Carolina yesterday agreed, issuing a consent decree (a settlement without declaration of guilt) telling state officials, along with public school districts, boards, administrators, and teachers, not to enforce the law. U.S. District Judge David C. Norton, writing for the court, said that the statute, “is a classification based on sexual orientation that is not rationally related to any legitimate state interest, and thus cannot satisfy any level of judicial review under the Equal Protection Clause.”
Eli Bundy, a tenth grader and president of the GSA at a public magnet school in the Charleston County School District, said in a statement, “I am very excited that this discriminatory law can no longer be enforced in South Carolina, and I hope we can continue to work toward a more accepting and equal state-wide community. I know how frustrating it can feel to be told by a teacher that they can’t talk about who you are. I’m so grateful that no other South Carolina student will have to go through school feeling like they have been erased.”
Five other states (Alabama, Louisiana, Mississippi, Oklahoma, and Texas) still have similar “no promo homo” laws, according to the Movement Advancement Project. The Arizona legislature repealed that state’s “no promo homo” law last April, after the Superintendent of Public Education called for a repeal and NCLR and Lambda Legal brought a lawsuit. The Utah legislature repealed its “no promo homo” law in 2017.
GLSEN notes, “These laws foster an unsafe and unwelcoming school atmosphere … LGBTQ students in states with stigmatizing laws have less support in school from educators and other students and fewer LGBTQ-related resources (such as GSAs). Teachers in these states are less likely to teach about LGBTQ topics in a positive way and more likely to teach them in a negative way. Furthermore, LGBTQ youth in the ‘no promo homo’ states are less able to access relevant school health services.” I’d also add that students with LGBTQ parents, regardless of the students’ gender and sexual identities, likely feel the negative impact of these laws as well—and that students of any identity and family benefit from an inclusive environment that is supportive of all students.
In a week that feels like we could all use some good news, the court’s decree is especially welcome. Bravo to all the plaintiffs and their legal team.
