>> The Most Discriminatory Laws You Have Never Heard Of : There are still 8 US states that ban discussion of gay issues in school
Alors que certains espéraient que la discrimination contre les personnes LGBT allait s’estomper aux États-Unis avec la légalisation du mariage pour les couples de même sexe sur tout le territoire, beaucoup estime que le travail reste loin d’être achevé. Aujourd’hui encore, dans l’Alabama, l’Arizona, le Mississippi, la Caroline du Nord, l’Oklahoma, la Caroline du Sud, l’Utah et le Texas, un enseignant qui aborde un thème traitant de sujets en rapport avec l’homosexualité dans une classe, peut être limogé sur le champ pour « faute grave » !
Et, malgré l’abrogation en 2003 de sa loi limitant les pratiques sexuelles pour les homosexuels, le Texas va encore plus loin, exigeant que les établissements scolaires enseignent aux plus jeunes que « l’homosexualité n’est pas un mode de vie acceptable et constitue une infraction pénale ».
« Aussi surprenant que cela puisse paraître, même pour mes collègues, le mouvement des droits des LGBT s’est tellement concentré sur l’égalité des droits du mariage que d’autres lois discriminatoires ont été négligées ou ignorées » souligne Ryan Matthews, un étudiant en droit de l’Université de St John de New York.
L’étudiant dénonce dans un article, des lois homophobes, baptisées « No Promo Homo », qui « violent notamment le premier amendement, celui du droit à la libre expression des enseignants et des étudiants ». Si elles étaient de nouveau présentées devant la Cour suprême des États-Unis, « ces lois seraient certainement jugées inconstitutionnelles. Et, c’est la prochaine étape dans notre combat pour la pleine égalité dans notre pays. »
>> While same-sex marriage is now legal in all 50 US states there ares still some remaining anti-LGBTI laws functioning at a state level in the United States and the worst of these may be so-called ‘No Promo Homo’ state laws that ban discussion of LGBTI issues in public schools.
Alabama, Arizona, Mississippi, North Carolina, Oklahoma, South Carolina, Texas and Utah all have some type of legislation restricting discussion of homosexuality in the classroom.
The current law in Texas goes even further than just restricting discussion of homosexuality, requiring that children be taught that being gay is ‘not an acceptable lifestyle and is a criminal offense’ despite Texas’ sodomy laws being struck down in 2003.
As a result of these laws, teachers in these states who address LGBTI issues in the classroom can still risk being fired.
Writing in a column for Jurist.org, third-year law student at New York’s St John’s University School of Law Ryan Matthews said that it was important that the LGBTI community in America did not think the battle had ended with marriage equality.
‘The US Supreme Court recently decided in favor of same-sex marriage in the long awaited case of Obergefell v. Hodges,’ Matthews wrote,
‘I worry this decision will be seen as the end of the gay rights movement. Mission accomplished, time to go home. The gay rights movement has been so focused on marriage rights that other discriminatory laws have been overlooked or ignored. My hope is that instead the decision will be a stepping stone towards eradicating these laws across the nation.’
Matthews called No Promo Homo laws ‘the most discriminatory laws you have never heard of.’
‘Hidden in education laws, they restrict the promotion of homosexuality in public school classrooms by prohibiting the teaching of homosexuality or requiring its condemnation,’ he wrote.
Matthews said that it worried him that many of his fellow law students couldn’t believe that laws like these were even followed in 2015 when some lawmakers were even trying to strengthen them.
‘These laws are not outdated; indeed they have only been around since the 1980s,’ Matthews wrote.
‘To combat the teachings of acceptance by the 1960’s gay rights movement, these states responded by teaching hate. As the gay rights movement continues to make strides across the nation and same-sex marriage becomes inevitable, states look to No Promo Homo laws as their last avenue for spreading anti-gay beliefs.’
Matthews believes that if challenges to these kinds of laws were to make their to the US Supreme Court it would likely find them unconstitutional.
Matthews believes such laws could be found to breach the First Amendment right to free speech of teachers and students and also the 14th Amendment’s equal protection clause and hopes that ending No Promo Homo laws will be the next priority for the LGBTI rights movement in the United States.
‘These constitutional arguments against No Promo Homo laws deserve their chance in court,’ Matthews wrote.
‘No Promo Homo laws should be the next item on the gay rights agenda to ensure … equal dignity is given to our students and teachers as well.’
Matthews’ full column on the subject
The US Supreme Court recently decided in favor of same-sex marriage in the long awaited case of Obergefell v. Hodges. As a supporter of LGBT rights, this decision makes me uneasy.
I worry this decision will be seen as the end of the gay rights movement. Mission accomplished, time to go home. The gay rights movement has been so focused on marriage rights that other discriminatory laws have been overlooked or ignored. My hope is that instead the decision will be a stepping stone towards eradicating these laws across the nation.
No Promo Homo laws are the most discriminatory laws you have never heard of. Hidden in education laws, they restrict the promotion of homosexuality in public school classrooms by prohibiting the teaching of homosexuality or requiring its condemnation. They exist in eight states: Alabama, Arizona, Mississippi, North Carolina, Oklahoma, South Carolina, Texas and Utah. For example Utah requires their board of education to prohibit instruction in the “advocacy of homosexuality.” A more egregious Texas law requires teaching that homosexuality is “not an acceptable lifestyle and is a criminal offense.” Appallingly, Texas cites the very penal law found unconstitutional in the landmark 2003 Lawrence v. Texas case.
It is clear that legislatures in some states disagree and resist homosexual rights even 10 years after the decision in Lawrence. These states have kept their discriminatory agenda on the books by burying these laws in education bills, taking advantage of their broad discretion in the area of education.
These laws are not outdated; indeed they have only been around since the 1980s. To combat the teachings of acceptance by the 1960’s gay rights movement, these states responded by teaching hate. As the gay rights movement continues to make strides across the nation and same-sex marriage becomes inevitable, states look to No Promo Homo laws as their last avenue for spreading anti-gay beliefs. In 2013 Utah House Bill 363 proposed an expansion of their law to also prohibit classroom “instruction in or advocacy of homosexuality.” Teachers would be barred from even recognizing homosexual students or “instructing” them about homosexuality. This bill proposed in Utah’s ban on same-sex marriage was found unconstitutional in Kitchen v. Herbert.
When I bring this law to the attention of my classmates they always ask, “Is a law like this actually followed?” The ever-practical law student wants to know what impact, if any, these laws are having. They doubt the law is being followed and believe it is just an outdated law simply forgotten about and left on the books. However the evidence is overwhelming that these laws are being followed.
The national Gay, Lesbian & Straight Education Network (GLESN) warns that No Promo Homo laws have created a hostile and discriminatory learning environment for LGBT youth. GLESN reports that states with these laws have significantly higher levels of victimization based on sexual orientation than states without, contributing to LGBT youths’ high suicide rates. Two students in Alabama recently campaigned to remove their No Promo Homo law. The students argued it is “school sponsored bullying,” blaming the school for taking part in their discrimination. Unfortunately these students were unsuccessful with their petition. Clearly state-by-state legislative change is unlikely and will be slow; these laws must be challenged in court as unconstitutional.
The constitutional challenge to No Promo Homo laws is strong and multi-faceted. The constitutionality claim of teachers and students is based on the First Amendment. Cases throughout the years have interpreted free speech rights and have specifically detailed when and if speech can be barred in school. In the case of Tinker v. Des Moines the Supreme Court reaffirmed constitutional rights in school, holding, “it can hardly be argued that students or teachers shed their constitutional rights to freedom of speech at the school gate.” In order to regulate speech, a school must show that discussing homosexuality will lead to a substantial disruption of school activities. Mere disagreement of opinion is not enough, given that “undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression.” Discussion about homosexuality does not substantially disrupt school activities to justify a ban on speech of teachers and students. In fact studies repeatedly show that discussing all lifestyles in school leads to a more inclusive and safe environment. It is clear that the ban is nothing more than a difference of opinion, therefore it violates the free speech of teachers and students.
These laws also violate the Equal Protection clause of the Fourteenth Amendment. No Promo Homo laws discriminate against students on many different levels. Some only impliedly do so, like a South Carolina law which requires schools to promote heterosexual marriage in their education. This law does not facially discriminate against LGBT students but favors heterosexuality and implies that homosexuality is of less value. Others are facially discriminatory and require the condemnation of LGBT students in the classroom setting. Equal protection under the Fourteenth Amendment requires that both types of laws are rationally related to a legitimate state purpose. Although it is a low standard, it is unlikely states will be able to satisfy it. Arguments against homosexuality are not related to legitimate interests of the state and are instead related to religious doctrine. These states may also proffer that homosexuality education threatens legitimate state interests in family life and child care, yet these arguments have been repeatedly struck down in recent same-sex marriage cases. Courts find no evidence that LGBT couples are any less successful in raising a family than their heterosexual counterparts. No Promo Homo laws are not rationally related to any legitimate state interest and hence also violate Equal Protection.
These constitutional arguments against No Promo Homo laws deserve their chance in court. As Justice Kennedy stated in the majority opinion of Obergefell, “They ask for equal dignity in the eyes of the law. The Constitution grants them that right.” No Promo Homo laws should be the next item on the gay rights agenda to ensure this equal dignity is given to our students and teachers as well.
Ryan Matthews is a third-year student at St. John’s University School of Law. He was a student intern with the Consumer Justice for the Elderly: Litigation Clinic and currently works at District Council 37 Municipal Employees Legal Services. Ryan is a senior staff member of the Journal of Civil Rights and Economic Development.