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

By Hoshall, Leora | Texas Journal of Women, Gender, and the Law, April 1, 2013 | Go to article overview

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


Hoshall, Leora, Texas Journal of Women, Gender, and the Law


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.16 The risks associated with being openly homosexual have forced countless individuals to remain "in the closet."17

This pervasive anti-homosexual sentiment has engendered an ideology known as "no promotion of homosexuality," or "no promo homo," which has found expression in public education legislation.18 An early attempt by the Oklahoma legislature to allow the dismissal of public school teachers who were found guilty of "advocating . . . encouraging or promoting" homosexuality19 was invalidated by the United States Court of Appeals for the Tenth Circuit as facially overbroad.20 Other broad no promo homo education laws have met similar fates.21 But in the eggshell-strewn realm of public school sex education, no promo homo statutes remain rarely challenged and rarely discussed.

This Article will evaluate the no promo homo elements in sex and health education laws in seven states. It will consider the interaction between these no promo homo laws and the largely unenforceable sodomy laws that remain on the books in six of the seven states. …

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