Parents in California may not remove their children from instruction related to sexual orientation and gender identity due to non-discrimination laws.
Parents in California may remove their children from the entire sex education curriculum as a whole, and they can specifically withdraw their children from instruction related to prevention of sexually transmitted diseases.
In 2015, the California legislature signed off on the Healthy Youth Act, a new sexual education curriculum for children in kindergarten and first through twelfth grade.
In April 2018, web sites reported on the parental consent provisions in the law. For example, in an article with the headline “California School District Says Parents Can’t Pull Kids From New LGBT Sex Ed,” LifeSite News wrote:
California is about to implement new abortion- and homosexualty-promoting [sic] sex education lessons, and one school district has told parents they have no choice but to expose their children to them…
…The California Healthy Youth Act expressly protects parents’ rights to “excuse their children from participation” in sex education courses without penalty of any kind, because “parents and guardians have the ultimate responsibility for imparting values regarding human sexuality to their children.” The Orange County school district apparently interprets this differently.
In a memo dated March 29 to the Orange County Board of Education, Orange County Department of Education general counsel Ronald Wenkart says that the law’s opt-out provision “does not apply to instruction, materials, or programming that discusses gender, gender identity, gender expression, sexual orientation, discrimination, harassment, bullying, intimidation, relationships, or family and does not discuss human reproductive organs.”
The first thing to note here is that California is not “about to” implement the Healthy Youth Act. The new sexual education curriculum has been in place since 1 January 2016. Secondly, as the article suggests (but does not make clear), parents do have the right to specifically opt out of some parts of the curriculum for their children, but not others. They can also opt out of all sexual education, as an entire curriculum.
The text of the law, which was passed in 2015 as Assembly Bill (A.B.) 329, has been a source of misunderstandings both sincere and insincere and varying interpretations. It states the primary goals of the curriculum. The first two are:
- To provide pupils with the knowledge and skills necessary to protect their sexual and reproductive health from HIV and other sexually transmitted infections and from unintended pregnancy.
- To provide pupils with the knowledge and skills they need to develop healthy attitudes concerning adolescent growth and development, body image, gender, sexual orientation, relationships, marriage, and family.
In brief, the law specifies that parents or guardians can withdraw their children from sex education under the Healthy Youth Act:
A parent or guardian of a pupil has the right to excuse their child from all or part of comprehensive sexual health education, HIV prevention education, and assessments related to that education through a passive consent (“opt-out”) process.
But another section of the law stipulates that the Healthy Youth Act doesn’t relate to classroom materials or instruction about relationships, sexual orientation, or gender identity:
This chapter 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.
This is what has given rise to confusion over the level of control a parent in California has over the sex education their child will or will not receive under the new law. In an e-mail, a spokesperson for the California Department of Education confirmed that the Healthy Youth Act has the following effect on parental consent:
- A parent can withdraw a child from comprehensive sex education, as a whole curriculum (both instruction on HIV and STI prevention, and instruction on sexual orientation, gender identity, relationships and so on)
- A parent can withdraw a child specifically from only the instruction on HIV and STI prevention
- A parent cannot withdraw a child specifically from only the instruction on sexual orientation and gender identity.
If they allowed a parent to specifically target instruction on sexual orientation and gender identity, a school or school district could fall foul of non-discrimination laws. The department of education spokesperson told us “it would violate EC 220”, a part of California’s Education Code, which states:
No person shall be subjected to discrimination on the basis of disability, gender, gender identity, gender expression, nationality, race or ethnicity, religion, sexual orientation, or any other characteristic…including immigration status, in any program or activity conducted by an educational institution that receives, or benefits from, state financial assistance, or enrolls pupils who receive state student financial aid.
So it is wrong to claim that parents in California will be forced to allow their children to receive sex education: they can withdraw consent for the whole curriculum, or for instruction on HIV and STI prevention. What they cannot do is specifically withdraw their consent for classroom instruction on sexual orientation and gender identity.