Since taking effect on January 1, 2016, the California Healthy Youth Act (“HYA”) has required California public school districts to provide students in grades seven through twelve with comprehensive sexual health education and HIV prevention information. Under this law, school districts may even choose to offer “age-appropriate” instruction earlier than grade 7. While each school district can determine its own curriculum, the instruction must meet certain standards, such as being medically accurate and objective; being appropriate for use with students of all races, genders, sexual orientations, and ethnic and cultural backgrounds; affirmatively recognizing different sexual orientations and including same-sex relationships in discussions; and teaching about gender, gender expression, gender identity, and the harm of negative gender stereotypes.
A significant element of the HYA has been its recognition of the right of parents to supervise their children’s sexual health education: “ The Legislature recognizes that while parents and guardians overwhelmingly support medically accurate, comprehensive sex education, parents and guardians have the ultimate responsibility for imparting values regarding human sexuality to their children.” In acknowledging this right and responsibility, the Act requires schools to notify parents and guardians about the planned instruction, allows parents and guardians to review materials in advance of the instruction, and permits them to excuse their children from participation in all or part of the sexual health education, HIV prevention education, and assessments related to that education. While the law’s deference to parents is commendable, there is ambiguity as to the extent of the “opt out” provision’s reach.
In particular, there has been some recent confusion and concern in several California public school districts about whether the “opt out” provision applies to instruction involving discussions of gender identity and sexual orientation. The confusion stems from a seemingly conflicting provision in the HYA (Section 51932(b)), which states that the law (and therefore the “opt-out” provision) “does not apply to instruction, materials, presentations, or programming that discuss gender, gender identity, gender expression, sexual orientation, discrimination, harassment, bullying, intimidation, relationships, or family and do not discuss human reproductive organs and their functions.” The Orange County Board of Education has taken the position that if sex education instruction is offered in “separate modules” and one those modules discusses gender identity or sexual orientation without reference to reproductive organs or functions, then parents are not permitted to excuse their children from that particular module or discussion.
However, the California Catholic Conference (CCC) strongly believes that this analysis is flawed. The HYA, by its own terms, applies to “comprehensive sexual health education,” which must include instruction regarding sexual orientation and gender identity/expression. Specifically, the Act provides that “comprehensive sexual health education” instruction must “affirmatively recognize that people have different sexual orientations and, when discussing or providing examples of relationships and couples, shall be inclusive of same sex-relationships.” The HYA also requires that the “[i]nstruction and materials shall teach pupils about gender, gender expression, gender identity, and explore the harm of negative gender stereotypes.” Given the Act’s requirement to provide instruction on sexual orientation and gender identity/expression as part of a school’s “comprehensive sexual health education” program - even if this instruction is presented in “separate modules” without reference to reproductive organs or functions – the only reasonable conclusion is that parents must be given the opportunity to excuse their children from all or part of that program.
The question then arises - what did the Legislature intend by including Section 51932(b), which, in effect, does not allow parents to opt out of instruction and programming that discuss gender, gender identity/expression, and sexual orientation and do not discuss human reproductive organs and their functions? The answer is unclear but a possible interpretation is that this provision applies to areas of instruction and curriculum unrelated and unconnected to a school district’s comprehensive sexual health education and HIV prevention education classes, such as social studies lessons on prominent LGBT Californians. Thus, in situations where the topics of sexual orientation and gender identity/expression are discussed in a class, separate from sexual health education and outside the purview of the HYA, parents presumably would not have the option to excuse their children from participation in those discussions.
As the scope of parental rights under the HYA is unclear, parents should use this as an opportunity to contact their schools and school districts to request clarification and to advocate for parental rights to be protected to the fullest extent. This responsibility of parents is affirmed both by the Catechism of the Catholic Church (2223), which acknowledges parents as the primary educators of their children, and the HYA itself, which, as mentioned above, recognizes that “parents and guardians have the ultimate responsibility for imparting values regarding human sexuality to their children.”
Talking points/questions to ask local school boards
- How and when are parents notified about the planned instruction in comprehensive sexual health and HIV prevention education?
- Does the “opt out” provision apply to instruction involving all discussions of gender identity and sexual orientation?
- If not, to which classes discussing gender identity/sexual orientation does the “opt out” provision apply?
- Who determines whether the instruction and materials are “age appropriate” (especially at the elementary school level)?
- Do the instruction and materials include information about abstinence? (According to the CA Department of Education website, “abstinence may not be discussed in isolation from other methods of preventing HIV, others STIs, and pregnancy. The Education Code requires that instruction and materials include information that abstinence is the only certain way to prevent HIV, other STIs, and unintended pregnancy. However, it also states: ‘Instruction shall provide information about the value of delaying sexual activity while also providing medically accurate information on other methods of preventing HIV and other sexually transmitted infections and pregnancy.’ (EC Section 51934(a)(3)). ‘Abstinence-only’ sex education, which offers abstinence as the only option for preventing STIs and unintended pregnancy, is not permitted in California public schools.”)