Lawsuit: SC’s restrictions on LGBTQ sex ed curriculum violates Constitution

VIDEO: Lawsuit: SC’s restrictions on LGBTQ sex ed curriculum violates Constitution

CHARLESTON, S.C. (WCSC) - A federal lawsuit has been filed against South Carolina’s superintendent of education regarding a decades old law which prohibits districts from including any discussion of alternative sexual lifestyles in their health education courses, except in the context of sexually transmitted diseases.

The Gender and Sexuality Allliance which includes the Campaign for Southern Equality and the South Carolina Equality Coalition, Inc., claims the state’s 1988 Comprehensive Health Education Act violates the equal protection clause of the fourteenth amendment.

The plaintiffs argue the legislation singles out LGBTQ students for negative treatment and does not impose any comparable restriction on health education about heterosexual people.

“It had the express and singular purpose of voicing moral disapproval of non-heterosexual people, and it serves no state purpose at all. This statute attempts to, at best ignore, and at worst to completely stigmatize young people who identify as LGBTQ in South Carolina and it must be struck down,” said Jeff Ayers, Executive Director of South Carolina Equality.

The Gender and Sexuality Alliance held a press conference Wednesday morning to announce their complaint filing.

A teacher who violates the provision can be fired, according to the act.

“This discriminatory law is archaic, outrageous, and profoundly damaging to LGBTQ students, treating them as pariahs,” added Peter Renn, Counsel for Lambda Legal. “It should come as no surprise that where the government stigmatizes a group of students as ‘unmentionable,’ it risks breeding a school environment hostile to LGBTQ students, with more harassment and abuse in classrooms, hallways, and locker rooms.”

South Carolina Attorney General Alan Wilson released an opinion on the constitutional legality of the act on Feb. 18, 2020. He agreed with the plaintiffs’ opinion that the law violates the Equal Protection clause and discussed the complex nature of the issue.

“In light of the United States Supreme Court decision in Qbergefell v. Hodges, 575 U.S. , 135 S.Ct. 2584 (2015), as well as other decisions to be discussed below, relating to discrimination on the basis of sexual orientation, we suggest that the General Assembly repeal the statute,” Wilson’s opinion said. “School officials who abide by this provision may not entitled to ‘good faith’ immunity in light of Obergefell. and other authorities, thereby subjecting them to the risk of § 1983 liability. We also note that the religious liberties of parents, students, teachers and administrators who object to a discussion of homosexuality in the classroom must be protected. Section 59-32 50 authorizes an “opt out” from the class teaching health education. Moreover, there are potentially free exercise of religion rights which must be protected as well. Only a court can balance these competing interests so that all constitutional rights are protected.”

Wilson added that his office has consistently supported and will continue to support the protection of religious liberties in every context.

“Important free exercise of religion rights must be protected, while at the same time, ensuring that anti-gay discrimination which violates the Constitution is not present in the classroom,” Wilson’s opinion letter said.

The state superintendent of education, Molly Spearman, said the attorney general’s opinion was prompted her.

“I am required to uphold the laws without discretion passed by the South Carolina General Assembly. My primary obligation is always to uphold the rights and safety of our students and their families. The lawsuit filed today highlights an issue that the General Assembly has failed to address. I recently sought and received an Attorney General’s opinion on its constitutionality," Spearman said. “I agree with the arguments and evidence presented in the opinion. I also believe that parents should continue to have the final say in whether or not their child participates in health education curriculum. The ultimate decision now rests in the hands of the Court. I trust they will be swift and their decision will uphold the dignity of all students.”

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