UPDATE: The U.S. District Court for the District of South Carolina on March 11 entered a consent decree that declares South Carolina’s 1988 discriminatory anti-LGBTQ curriculum law unconstitutional and bars its enforcement. The court’s decree comes two weeks after a federal lawsuit was filed on behalf of the high school student organization Gender and Sexuality Alliance, as well as the Campaign for Southern Equality and South Carolina Equality Coalition, including their members who are public school students in South Carolina. The statute prohibited any discussion of same-sex relationships in health education in public schools except in the context of sexually transmitted diseases. The lawsuit was filed by the National Center for Lesbian Rights and Lambda Legal, along with private counsel Womble Bond Dickinson, Brazil & Burke, and University of Utah S.J. Quinney College of Law professor Clifford Rosky.
This week, University of Utah S.J. Quinney College of Law Professor Clifford Rosky, along with the National Center for Lesbian Rights, Lambda Legal, and private counsel Womble Bond Dickinson and Brazil & Burke, filed a federal lawsuit challenging a South Carolina statute that prohibits public school health education from including any discussion of same-sex relationships except in the context of sexually transmitted diseases. The lawsuit is filed on behalf of the student organization Gender and Sexuality Alliance, as well as the Campaign for Southern Equality and South Carolina Equality Coalition, including their members who are public school students in the state.
The lawsuit, Gender and Sexuality Alliance v. Spearman, alleges that S.C. Code § 59-32-30(A)(5), a provision of the South Carolina’s 1988 Comprehensive Health Education Act, violates the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution by discriminating against students who are lesbian, gay, bisexual, transgender, and queer (LGBTQ). The statute prohibits districts from including in their health education any “discussion of alternate sexual lifestyles from heterosexual relationships including, but not limited to, homosexual relationships except in the context of instruction concerning sexually transmitted diseases.”
The law singles out LGBTQ students for negative treatment and does not impose any comparable restriction on health education about heterosexual people. Any teacher who violates the provision is subject to dismissal. The South Carolina Attorney General has recently issued an opinion that a court would likely find the law unconstitutional.
“LGBTQ kids at our school – and every school in South Carolina – just want to feel safe, respected, and equal to other students in the classroom,” said Eli Bundy, a tenth grader who is the president of the Gender and Sexuality Alliance (GSA), an organization of high school students at a public magnet school in the Charleston County School District. “This discriminatory law treats LGBTQ students like we are outsiders in our own community, and that we aren’t equal to our peers. School should be a safe place for all students to be treated fairly and equally.”
“We were especially delighted to see that the state’s leading attorney, the South Carolina Attorney General, agrees that the anti-LGBTQ Curriculum Law is unconstitutional,” said Clifford Rosky, a professor of constitutional law at the University of Utah, referring to a recent opinion issued by the Attorney General’s Office. “For now, this discriminatory law unfortunately remains in effect, and it inflicts ongoing harm against LGBTQ students in South Carolina’s public schools. To protect these students, we’ll need a judge to prevent the law’s enforcement, or state lawmakers to repeal it – as lawmakers have recently done in Utah and Arizona.”
The lawsuit is the latest constitutional challenge to anti-LGBTQ curriculum laws, which still remain in a handful of states. In 2019, a lawsuit in Arizona brought by NCLR, Lambda Legal, Professor Rosky, and private counsel led to the state legislature repealing the challenged law. In 2017, the Utah legislature repealed similar state laws following a 2016 lawsuit brought by NCLR and private counsel, in which Professor Rosky served as an expert witness.
Students in states with discriminatory curriculum laws report more hostile school climates. 2017 data from GLSEN’s National School Climate Survey surveying LGBTQ middle and high school students demonstrates that South Carolina schools are not safe for most LGBTQ students; nearly 90% said they regularly heard homophobic remarks, 76% experienced verbal harassment, 34% experienced physical harassment, and 14% were physically assaulted due to their sexual orientation.
Rosky has done significant work on anti-gay curriculum laws. Rosky’s article “Anti-Gay Curriculum Laws,” which was published in the Columbia Law Review, proposes a 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,” Rosky writes.