64 Pages Posted: 14 Mar 2017 Last revised: 11 May 2017
Date Written: March 11, 2017
Since the Supreme Court’s invalidation of anti-gay marriage laws, scholars and advocates have begun discussing what issues the LGBT movement should prioritize next. This article joins that dialogue by developing the framework for a national campaign to invalidate anti-gay curriculum laws—statutes that prohibit or restrict the discussion of homosexuality in public schools. These laws are artifacts of a bygone era in which official discrimination against LGBT people was both lawful and rampant. But they are far more prevalent than others have recognized. In the existing literature, scholars and advocates have referred to these provisions as “no promo homo” laws and claimed that they exist in only a handful of states. Based on a comprehensive survey of federal and state law, this article shows that anti-gay provisions exist in the curriculum laws of twenty states, and in several provisions of one federal law that governs the distribution of $75 million in annual funding for abstinence education programs. In light of the Supreme Court’s rulings in four landmark gay rights cases, these laws plainly violate the Constitution’s equal protection guarantees, because they are not rationally related to any legitimate governmental interests. For the moment, however, federal and state officials still have the legal authority to enforce these laws, because no court has enjoined them from doing so. By challenging one of the country’s last vestiges of state-sponsored homophobia, advocates can help to protect millions of students from stigmatization and bullying, giving them an opportunity to thrive in our nation’s public schools.
Keywords: sexuality, education, constitutional, LGBT, lesbian, gay, bisexual, transgender, abstinence, no promo homo
Suggested Citation: Suggested Citation
Rosky, Clifford, Anti-Gay Curriculum Laws (March 11, 2017). Columbia Law Review, Forthcoming; University of Utah College of Law Research Paper No. 205. Available at SSRN: https://ssrn.com/abstract=2931244