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Over the Rainbow: The future of no promo homo laws in public education

“Queer people exist in the rural South,” Annabeth Mellon told NBC News while describing her experience as a bisexual student in the Alabama public school system. “The rest of the world wants to forget about that fact, because [the South is] a ‘lost cause,’ but that thinking is what allows ‘no promo homo’ laws to remain in existence.”

As of March 2021, six states have “no promo homo” laws, which limit discussions of homosexuality in public schools. For example, Texas and Alabama require teachers to tell students that homosexuality “is not a lifestyle acceptable to the general public” during sexual education classes. While these laws—which also exist in Mississippi, Louisiana, South Carolina, and Oklahoma—mostly apply to sexual education, many teachers and administrators misinterpret them to justify banning Gay-Straight Alliances (GSAs) and LGBTQ+ inclusive curricula. Although no promo homo laws do not explicitly target transgender students, muddled understandings can cause educators to believe the statutes apply to them as well. However, hope is on the horizon. Despite no promo homo laws’ decades-long reign, they have become increasingly vulnerable due to changing legal precedent and statewide litigation. Therefore, organized legal suits and threats to withdraw federal education funds from states with no promo homo laws could maximize pressure to repeal these unjust policies.

No promo homo laws proliferated in two distinct eras. First, in the 1980s, fears over HIV/AIDS led to the expansion of sexual education in public schools. In response to this trend, religious conservatives lobbied for anti-gay provisions in the curricula. Second, the 1990s ushered in a new era of state-sanctioned homophobia, namely through the Defense of Marriage Act, which established the federal definition of marriage as a union between a man and a woman, further legitimizing no promo homo laws. Today, across the United States, conservative Christian organizations defend these laws as necessary to uphold “family values,” arguing that if schools discuss homosexuality, they will “indoctrinate” children to think it is acceptable. The popularity of these beliefs among legislators’ constituents has incentivized them to support these laws.

Since their inception, no promo homo laws have wreaked havoc on the lives of LGBTQ+ students. In 2018, the Gay, Lesbian and Straight Education Network (GLSEN), a LGBTQ+ rights advocacy group, conducted a survey which demonstrated that LGBTQ+ students in states with these laws face “more hostile school environments and have less access to the resources and support [that are] crucial to their safety, well-being, and academic success.” Not only do LGBTQ+ youth in states with no promo homo laws experience more harassment and assault than their peers in other states, but students that harm LGBTQ+ students are also less likely to face punishment. This lower likelihood can be attributed to a disconnect between school faculty and LGBTQ+ students that makes both groups less likely to report bullying. This rift also means that in no promo homo states, students are less likely to have access to GSAs. These clubs create safe and supportive environments for LGBTQ+ students, yet they often cannot exist without school support. Finally, the negative effects of these laws manifest in students’ academic outcomes, as LGBTQ+ students’ grades suffer when they are in toxic environments and cannot see themselves positively reflected in school curricula.

Despite the persistence of no promo homo laws, changing legal precedent has left them more vulnerable than ever before. State legislatures have ceded to lawsuits challenging the constitutionality of these laws since the Supreme Court ruled in Lawrence v. Texas (2003) and Obergefell v. Hodges (2015) that most explicit anti-gay laws are unconstitutional under the 14th Amendment’s Equal Protection Clause. For example, in 2016, the civil rights organization Equality Utah filed a lawsuit against the Utah State Board of Education to overturn a statute banning public school teachers from engaging in the “advocacy of homosexuality.” A year later, the legislature and governor proactively nixed the law, knowing that they would lose in court. In Arizona, a similar suit compelled the legislature to invalidate a law that prohibited HIV/AIDS-related “instruction which…[promoted] a homosexual lifestyle.” When civil rights groups sued the South Carolina state government over a 1988 law making it illegal for teachers to discuss “alternate sexual lifestyles from heterosexual relationships,” a US District Court found the law unconstitutional under the 14th Amendment. These lawsuits remain a low risk, high reward strategy; the courts are the most efficient way to undo such statutes and prevent their reinstatement.

A national campaign to pass a hybrid version of the Safe Schools Improvement Act (SSIA) and Student Non-Discrimination Act (SNDA) should accompany this legal strategy. The SSIA would amend the Elementary and Secondary Education Act (ESEA) to require school districts in states receiving federal ESEA funds to adopt anti-bullying policies covering sexual orientation and gender identity. The SNDA would explicitly bar public schools from discriminating against LGBTQ+ students, prohibit retaliation for filing a civil rights complaint, and allow federal authorities to address discrimination. By requiring states to abolish no promo homo laws to continue receiving federal education funds, state legislators would be forced to choose between substandard education for their constituents and compromising their anti-LGBTQ+ views, pressuring them to choose the latter. Analogous tactics have succeeded in influencing state governments to raise alcohol consumption ages and implement seatbelt legislation, and they would likely be similarly effective in defeating no promo homo laws. The repeal of no promo homo laws, however, will not immediately create a positive environment for LGBTQ+ students.

Policymakers must not only ensure the absence of harm, but also the presence of a culture that affirms LGBTQ+ identities. Therefore, in addition to enacting laws that ban discrimination and bullying based on sexual orientation and gender identity, civil rights organizations should pressure state governments to embrace LGBTQ+ inclusive curricula in public schools. For example, in 2011, California required public schools to use textbooks that were “inclusive of, and affirm, the contributions of LGBTQ+ people.” While these policies cannot occur until no promo homo laws are repealed, they are necessary to address the “culture of violence and degradation” that contributes to these laws in the first place.

The era of no promo homo laws must come to an end. Although the nation has made immense progress, we must heed Mellon’s words, never consider any part of the country a “lost cause,” and use every option at our disposal to dismantle these unjust policies. Such laws prevent schools from serving as welcoming environments in which LGBTQ+ youth can learn and grow. We must, however, do more than return to the norm before the existence of no promo homo laws. Once state lawsuits and national campaigns succeed in abolishing these laws, we must demand that schools take proactive steps to support LGBTQ+ students. It is up to all of us to build back better.

This article was written before the passage of the Equality Act through the US House of Representatives, which occurred on February 25, 2021. The Equality Act prohibits discrimination based on sexual orientation and gender identity in programs that receive federal funding, such as public schools. It would therefore undermine states’ ability to keep their no promo homo laws by attaching federal funds to compliance with a revised Civil Rights Act of 1964. However, if it cannot pass through the Senate, Congress should pass the hybrid bill described above.

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