Two gay rights organizations filed suit Thursday in federal court in Tucson challenging the legality of what some call Arizona’s “no promo homo” law.
The lawsuit, filed on behalf of Equality Arizona and an unnamed Tucson gay student, says the law “facially discriminates against non-heterosexual students on the basis of sexual orientation and places them in an expressly disfavored class.”
At issue is a section of the state education code that prohibits instruction that “promotes a homosexual lifestyle” or “portrays homosexuality as a positive alternative life-style” when teaching about AIDS and HIV. That, according to attorneys, is unconstitutional because it singles out a class of students – those who are gay – for negative treatment based on their sexual orientation.
“The negative impact is significant, communicating to teachers and students that there is something so undesirable, shameful or controversial about ‘homosexuality’ that any positive portrayal of non-heterosexual people or relationships must be barred,” the lawsuit states.
“It’s essentially communicating to students and the entire school community that there’s something wrong with this group of students,” said Peter Renn, an attorney with Lambda Legal Defense and Education Fund, one of the two organizations providing legal help in the lawsuit. “That, in itself, stigmatizes LGBTQ students and puts them at risk for harassment, discrimination and bullying.”
But that’s not the only problem challengers find with the law.
Renn points to another section, which forbids teachers from saying that there are safe methods of homosexual sex and yet offers no such restriction on teaching heterosexual safe sex. That, the lawsuit says, not only deprives LGBTQ students of equal educational opportunities but also exacerbates the health risks that these students already face.
“We’re talking about information here that could be potentially life-saving,” said Renn.
“Meanwhile, the state is essentially playing politics with students’ lives by forbidding medically accurate and age-appropriate information to be taught to students,” he continued. Renn said that’s particularly important as there has been a significant increase in the rate of newly diagnosed cases of HIV in Arizona.
The lawsuit asks a federal judge to declare the statutes and companion rules illegal and enjoin Kathy Hoffman, the state superintendent of public instruction, and the state Board of Education from enforcing the provisions.
Hoffman told Capitol Media Services she agrees with the challengers. In fact, she asked the House Education Committee earlier this year to repeal the statutes.
“This policy is not just outdated,” she said. “It has always been harmful and wrong.”
Renn said he was glad that Hoffman spoke out.
“I think it speaks volumes that the state’s top education official agrees that this law contributes to an unsafe school environment,” he said. “It increases the risk of discrimination and bullying for LGBTQ students.”
But Hoffman said it’s not just the state law that’s a problem. She pointed out that the Board of Education has a policy on its books saying schools should promote “monogamous, heterosexual marriage.”
“This is not inclusive of all of our students,” Hoffman said. And the schools chief said that she intends to ask the board to rescind the policy, regardless of what happens with the lawsuit.
The statute dates back nearly three decades to a proposal by Rep. Karen Mills, then a Glendale Republican.
“Many people today still believe that homosexuality is not a positive, or even an alternative, lifestyle,” she said at the time. And Mills said that “medical science has shown that there are no safe methods of homosexual sex.”
The resulting law, according to the attorneys, demeans LGBTQ students and sends a message they are inferior.
“By enshrining into state law that LGBTQ people may only be discussed in a negative light, the state and defendants instruct all students that LGBTQ people are a dangerous, immoral class of people from whom other students must be shielded,” the lawsuit states. The resulting stigma, say the lawyers, results in lower self-esteem and greater risk-taking behaviors, which in turn, can affect the higher risk that LGBTQ youth have for suicide and depression.
Conversely, the attorneys say, that in places with a “positive school climate,” there is less bullying, lower depression and fewer unexcused absences among LGBTQ student.
According to the lawsuit, the unnamed Tucson student who began experiencing bullying while attending a public middle school was not only being called names but was also getting no support from teachers and administrators.
The student subsequently transferred to a charter school but plans to attend Tucson High Magnet School for ninth grade, where HIV/AIDS will be taught separately using the current state-law guidelines for how it can be taught. These are the guidelines the lawsuit seeks to void. The result, the lawsuit says, is the student “will face further stigma and be denied equal educational opportunities because of the law.”
In a prepared statement, Cathi Herrod, president of the Center for Arizona Policy, said she believes that harassment or bullying of any student is “unacceptable.” But Herrod said the law itself deals only with instruction on AIDS, saying that is important for “the safety of our children.”
Herrod, however, did not address the fact that the statute in question allows the teaching of “safe” sex for heterosexual students while telling homosexual students there is no such thing for homosexual sex.
Hoffman said while the statute deals only with HIV and AIDS, teachers are afraid of mentioning homosexuality at all for fear of running afoul of the law.
“As a result, our students felt unsafe and not welcome, or even our parents that are part of the LGBTQ community did not feel safe or welcome in their schools,” she said. “And that’s why it’s been such a huge issue for me.”