Afraid of Who You Are: No Promo Homo Laws in Public School Sex Education

Article excerpt

This is an era when harassment of lesbian, gay, bisexual, and transgender students is being addressed by public school systems throughout the country. Rarely, however, do educators or policy-makers acknowledge that LGBT discrimination may be legislated into public school curricula. This Article looks at No Promotion of Homosexuality provisions-known as "no promo homo" laws-as they exist in American public school sexual education. The laws of seven states (Alabama, Arizona, Mississippi, Oklahoma, South Carolina, Texas, and Utah) are compared and contrasted, including discussion of lingering sodomy laws and analysis of attempts at repeal or amendment. Particular attention is given to the current state of the law in Texas where, nine years after the landmark Supreme Court decision in Lawrence v. Texas, the defunct sodomy law remains on the books and is a mandated element of public school sex education. This Article advocates updating these antiquated laws to reflect both the culture of equality promised in American public schools and the unconstitutionality of laws prohibiting homosexual conduct.

INTRODUCTION..................................................... 220

I. No Promo Homo Elements in Sex and Health Education Laws................ 222

A. Alabama ................................................................................222

B. Arizona ...................................................................................224

C. Mississippi .............................................................................226

D. Oklahoma ..............................................................................230

E. South Carolina ......................................................................232

F. Utah .......................................................................................233

II. Texas: The Crucible? ..........................................................235

Conclusion ................................................................................238

INTRODUCTION

In the world of law students, attorneys, judges, and justices, there are many landmark cases. The significance of cases like Erie] or McDonnell-Douglas2 cannot be overstated. But, in the wider world, cases such as these are unknown. The cases that become household names-Brown v. Board of Education,3 Roe v. Wade4-are controversial, but they are also more than that. They present issues that search the heart. They ask what it means to be human. Lawrence v. Texas is one of these cases.5

John Lawrence and Tyron Garner had been convicted, in 1998,6 of "deviate sexual intercourse."7 They were two consenting adult men who, in the privacy of Mr. Lawrence's apartment, engaged in a non-commercial intimate act. They had sex. Houston police officers, responding to a false weapons disturbance report, burst into Lawrence's residence, observed the two men, and arrested them.8

Lawrence and Garner were charged and convicted under § 21.06 of the Texas Penal Code.9 This statute, titled "Homosexual Conduct," states: "A person commits an offense if he engages in deviate sexual intercourse with another individual of the same sex."10 In Texas, deviate sexual intercourse includes "any contact between any part of the genitals of one person and the mouth or anus of another person."11 Texas's § 21.06 is a sterling example of a sodomy law.

Sodomy laws have been in place in the United States for generations.12 Although many of these laws purport to criminalize certain acts of heterosexual sex,13 their limited application makes it clear that "states [have] used sodomy laws to construct a criminal class comprised [sic] of gay men and lesbians."14 The mere existence of these laws, even if they are rarely enforced, has a devastating and far-reaching effect on persons who identify as lesbian, gay, bisexual, or transgender.15 The presumed criminal status of homosexuals has been used to justify police harassment, employment discrimination, and refusals to award custody of minor children. …