As the hundreds of witnesses at Wednesday’s hearing testified, there are many reasons to oppose Reps. Susan Lontine and Yadira Caraveo’s sex education bill, House Bill 1032. As a constitutional attorney, I see a myriad of legal problems with the bill – and I’m not the only one. At least three constitutional attorneys testified against the bill, and all three of us are members of the Colorado Commission for the Protection of Constitutional Rights. Colorado legislators should be extremely wary of passing bills that invite direct constitutional challenges, as this one does.
HB 1032 directly violates the free speech rights of Colorado students. Teachers’ free speech rights are violated as well, but that conclusion requires a more in-depth legal analysis than I can provide in a brief article. The stripping of students’ free speech is extremely apparent on the face of the bill. On page 12, HB 1032 claims that “discussion of moral, ethical, or religious values of individuals” are not prohibited. Yet, directly below this, the bill says, “…human sexuality instruction must not explicitly or implicitly…employ gender norms…” Simply put, in the course of a sex-ed class, if a child or teenager wants to discuss anything that is gender “normative,” he or she must be shut down by the teacher. If “gender norms” cannot even “implicitly” be included in sexuality instruction, this equates to the silencing of our children’s free-speech rights to speak their opinion or even ask questions on the topic.
As a policy analyst, I was deeply involved with Sen. Tim Neville’s successfully bipartisan Free Speech on Campus bill. Constitutional attorneys in Colorado have no intention of standing down when our elementary, middle and high school students’ free speech rights are at risk.
Another legal challenge faced by HB 1032 is its blatant viewpoint discrimination. While insisting that the “sexual experiences” of LGBT individuals must be taught to our children, it bans even the mention of “gender norms” that would oppose such descriptions. How can a law be truly “comprehensive” when it picks and chooses the particular experiences children must be exposed to and discards the views of those who do not want their children subjected?
For those questioning whether the bill really requires the explicit description of LGBT sexual activity, the answer is a resounding yes. The bill states, “human sexuality instruction must not …exclude the relational or sexual experiences of lesbian, gay, bisexual, or transgender individuals.” Legally speaking, if you cannot “exclude” something, you must “include” it. Sexual experiences are, by nature, explicit.
Some – including the bill’s sponsors – insist that parents can simply “opt out.” This is a half-truth at best. While parents keep the right to opt-out of direct sexuality classes, the bill specifically says, “Nothing….requires written notification for programming on gender, gender expression, sexual orientation, or healthy relationships that occurs outside the context of human sexuality instruction.” This must be taken in context with the rest of the bill that bans even the “implicit” teaching of gender norms. Legally, this means that children as young as kindergarten cannot be taught about gender norms, but will still be “programmed” about gender without their parents’ knowledge, notification, or ability to opt out. This is a clear violation of constitutional parental rights, and the bills’ sponsors ought to be concerned with their blatant disregard of both parental decision-making and the local control Colorado schools are supposed to have. Parents should be aware that the sponsors are stripping waiver options from Colorado charter schools.
Finally, a major problem with HB 1032’s legal language is that while it claims to require teaching on “healthy relationships,” it simultaneously bans any information on gender norms. Legally, this presupposes that a relationship involving gender norms cannot be healthy. That is a discriminatory conclusion on many heterosexual relationships and is an inappropriate conclusion for schools to teach impressionable children about their own parents.
If Colorado Democrats insist on passing this extreme bill, they should at least do so with the knowledge that they are inviting not only the anger of parents in their districts, but also a multitude of legal challenges that taxpayers will be forced to fund.
Kristi Burton Brown is a constitutional attorney who is currently running for Colorado Republican vice chair.