SEX EDUCATION IN SCHOOLS
EDITED BY BRIANNA STAMMETTI, RILEY SMITH, LORNA LOCH,
ISABELLA CHAIKEN, ROB MOBLEY, SANDRA MAKEEN, & SAVANNAH JELKS
I. INTRODUCTION.......................................... 1009
II. VARIATIONS IN STATE SEX EDUCATION POLICY ................... 1010
A. CURRENT STATUS OF SEX EDUCATION POLICY BY STATE ........ 1010
B. RECENT CHALLENGES AND PROPOSED CHANGES TO STATE STATUTES 1021
C. DISTRIBUTION OF FEDERAL FUNDING FOR ABSTINENCE-ONLY
PROGRAMS ........................................ 1022
D. DISTRIBUTION OF FEDERAL FUNDING FOR COMPREHENSIVE SEX
EDUCATION PROGRAMS ................................ 1024
III. LEGAL CHALLENGES TO SEX EDUCATION PROGRAMS............ 1025
A. OBJECTIONS TO LAWS THAT REQUIRE SEX EDUCATION .......... 1026
B. LEGAL OBJECTIONS TO LIMITS ON SEX EDUCATION ............ 1031
IV. POLITICAL CONTEXT AND SOCIAL SCIENCE DEVELOPMENTS. . . . . . . 1035
A. THE EFFECTIVENESS OF SEX EDUCATION PROGRAMS ........... 1035
B. TREATMENT IN THE 2016 PRESIDENTIAL ELECTION CYCLE . . . . . . . 1041
C. TREATMENT BY THE FIRST TRUMP ADMINISTRATION. . . . . . . . . . . . 1042
D. TREATMENT BY THE BIDEN ADMINISTRATION. . . . . . . . . . . . . . . . . 1042
V. CONCLUSION .......................................... 1043
APPENDIX A................................................ 1044
APPENDIX B................................................ 1048
I. INTRODUCTION
The teaching of sex education in the public-school system is a controversial
topic. As a result, state statutes regulating sex education, as well as methodolo-
gies used in sex education curricula, vary widely. The law covers topics including
general health education, sexually transmitted diseases (“STDs”), HIV/AIDS, con-
traception, abortion, and human sexuality. During the first Trump Administration,
changes to the federal funding available for abstinence-only programs included cuts
to funding for organizations taking part in President Obama’s Teen Pregnancy
Prevention Program.
1
Jessie Hellmann, Abstinence-Only Education Making a Comeback Under Trump, THE HILL (Mar.
8, 2018), https://perma.cc/BJ2G-MSU4.
The Trump Administration and former officials at the
Department of Health and Human Services emphasized the need to embed “sexual
delay” in sex education, as seen in a report released during the summer of 2018.
2
Following the first Trump administration, the Biden Administration took another
1.
2. Id.
1009
approach to return to more comprehensive sex education.
3
See, e.g., HHS Announces $68.5 Million for Teen Pregnancy Prevention Opportunities, U.S.
DEP’T OF HEALTH AND HUM. SERVS. (June 23, 2023), https://perma.cc/9RQY-SKUE (describing grants
to 53 organizations serving an estimated 210,000 youth providing “new and innovative approaches to
improve adolescent sexual health outcomes and promote positive youth development”); Abby Monteil,
The Biden Administration Is Providing $700,000 for Sex Ed for Trans Boys, THEM (Jan. 22, 2024),
https://perma.cc/29NQ-3D9S (describing funding to “address systemic inequities [assigned female at
birth] trans youth experience, including ‘significant social stressors, discrimination, dysphoria, and
rejection’”).
President Trump’s vic-
tory in the 2024 election presents a strong likelihood that the federal government
will return to a similar approach taken in the first Trump administration, such as fed-
erally funded abstinence-only sex education. The varied approaches taken by differ-
ent administrations illustrate the controversy surrounding sex education.
Part II of this Article surveys different state sex education laws, describes the
recent challenges and proposed changes to state statutes, and breaks down the distri-
bution of federal funding for both abstinence-only and comprehensive sex education
programs. Part III discusses the judicial history of the challenges to sex education
statutes. It examines differences between challenges to statutes that require sex edu-
cation and challenges to statutes that limit topics that may be covered in a sex educa-
tion curriculum. Part IV of this Article highlights political developments during the
2016 election cycle and research findings regarding the effectiveness of various sex
education programs, concluding with a discussion of the Trump Administration and
Biden Administration’s different approaches to the issue.
II. VARIATIONS IN STATE SEX EDUCATION POLICY
A. CURRENT STATUS OF SEX EDUCATION POLICY BY STATE
Sex education statutes vary significantly among the fifty states and the District
of Columbia (D.C.).
4
What’s the State of Sex Education in the U.S.?, PLANNED PARENTHOOD, https://perma.cc/H7PX-
BQJ4.
Each state has different limitations and requirements
regarding what public schools must, may, and cannot teach students.
5
See generally Detailed Insights on U.S. Sex Education Policies, SIECUS (2023), https://perma.cc/
H9P6-MGGQ (detailing all states’ policies).
Many states
expressly regulate teaching topics like abstinence, sexuality, STD prevention,
HIV/AIDS, and sexual orientation.
6
Some states grant local school boards a great
deal of discretion, resulting in little uniformity in the teaching of sexual education
throughout the state.
7
See, e.g., Jennifer Smith, State Moves to Bring Sex Education Out of the ‘90s, COMMONWEALTH
MAGAZINE (June 6, 2023), https://perma.cc/E5T3-QZLM.
The majority of states expressly regulate the teaching of sexual education in
public schools.
8
See Sex and HIV Education, GUTTMACHER INST. (Sept. 1, 2023), https://perma.cc/HS7E-D78X.
Thirty-three states and D.C. require public schools to include
education about STDs or HIV/AIDS in their curricula (see Appendix A for a chart
3.
4.
5.
6. Id.
7.
8.
1010 THE GEORGETOWN JOURNAL OF GENDER AND THE LAW [Vol. 26:1009
of sexual education laws in the states).
9
Alabama, California, Delaware, D.C., Georgia, Hawaii, Illinois, Indiana, Iowa, Kentucky, Maine,
Maryland, Michigan, Minnesota, Missouri, Nevada, New Hampshire, New Jersey, New Mexico, New
York, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina,
Tennessee, Utah, Vermont, Washington, West Virginia, and Wisconsin. See, e.g., CAL. EDUC. CODE
§ 51934 (West, Westlaw through ch. 1002 of 2024 Reg. Sess.); GA. CODE ANN. § 20-2-143 (West,
Westlaw through 2024 Reg. Sess. of Ga. Gen. Assemb.) (requiring sex education, including curricula
devoted to abstinence, STDs, and HIV/AIDS prevention); 105 ILL. COMP. STAT. ANN. 110/3 (West,
Westlaw through P.A. 103-871 of the 2024 Reg. Sess.); IND. CODE ANN. § 20-30-5-12 (West, Westlaw
through 2024 2d Reg. Sess. of the 123d Gen. Assemb. effective through July 1, 2024); IOWA CODE ANN.
§§ 256.11(4), (5j) (West, Westlaw through 2024 Reg. Sess.) (requiring STD education for grades seven
through twelve); ME. REV. STAT. ANN. tit. 22, §§ 1902, 1910 (West, Westlaw through ch. 646 of the
2023 Reg. Sess. of 131st Leg.) (requiring comprehensive family life education, including education
about family planning and STDs); MICH. COMP. LAWS ANN. § 380.1169 (West, Westlaw through P.
A.2024, No. 148, of the 2024 Reg. Sess.); MINN. STAT. ANN. § 121A.23 (West, Westlaw through 2024
Reg. Sess.) (requiring that each district have a program to reduce HIV and HPV transmission as well as a
curriculum that helps students abstain from sexual activity until marriage); NEV. REV. STAT. ANN.
§ 389.036 (West, Westlaw through 82d Reg. Sess. (2023) & 35th Spec. Sess. (2023)) (requiring HIV/
AIDS, human reproduction, sexual responsibility, and STD education); N.H. REV. STAT. ANN. § 189:10
(West, Westlaw through ch. 378 of 2024 Reg. Sess.); N.C. GEN. STAT. ANN. § 115C-81.30 (West,
Westlaw through the 2024 Reg. Sess.) (requiring STD prevention education, including education about
HIV/AIDS and HPV, as well as the effectiveness of FDA-approved contraceptive methods); OHIO REV.
CODE ANN. § 3313.60(A)(5)(c) (West, Westlaw through 2023–2024 Gen. Assemb.); OKLA. STAT. ANN.
tit. 70, § 11-103.3 (West, Westlaw through the 2d Reg. Sess. 2024); OR. REV. STAT. ANN. § 336.455(2)
(West, Westlaw through 2024 Reg. Sess.) (requiring sex education, including education about the
prevention of HIV and other STDs, as well as information about contraceptives); 16 R.I. GEN. LAWS
§ 16-22-17(a) (West, Westlaw through ch. 457 of the 2024 Reg. Sess. of the R.I. Leg.); S.C. CODE ANN.
§ 59-32-30(A) (West, Westlaw through 2024 Act No. 225) (requiring sex education in six through
twelfth grades including coverage of STD and pregnancy prevention, but prohibiting education of STDs
in kindergarten through fifth grade); UTAH CODE ANN. § 53G-10-402(2)(b) (West, Westlaw through the
2024 4th Spec. Sess.) (requiring education on prevention of communicable diseases, stressing
abstinence before marriage as prevention method and prohibiting encouragement of contraceptive use);
VT. STAT. ANN. tit. 16, §§ 131(1), (4) (West, Westlaw through ch. 185 and M-28 of the 2023–2024 Vt.
Gen. Assemb.); WASH. REV. CODE ANN. §§ 28A.230.020, 230.070(1), (6)-(7) (West, Westlaw through
the 2024 Reg. Sess.); W. VA. CODE ANN. § 18-2-9(b) (West, Westlaw through the 2024 Reg. and 1st
Extraordinary Sess.); WIS. STAT. ANN. § 115.35 (West, Westlaw through 2023 Act 272); ALA. CODE
§ 16-40A-2 (Westlaw through 2024 Reg. Sess.) (requiring an emphasis on abstinence as the only
effective protection against STDs and HIV/AIDS); 14 DEL. ADMIN. CODE § 851 (Westlaw through Oct.
1, 2024) (requiring comprehensive sexuality education and an HIV prevention program); D.C. MUN.
REGS. tit. 5-E, § 2305 (West, Westlaw through Oct. 11, 2024) (requiring instruction on human sexuality
and reproduction, including intercourse, pregnancy, childbirth, venereal disease, contraception, and
abortion); HAW. REV. STAT. ANN.§ 321-11.1 (West, Westlaw through Act 92 of 2024 Reg. Sess.)
(requiring abstinence-based sexuality education that includes instruction on HIV prevention); KY. REV.
STAT. ANN. § 158.1415 (West, Westlaw through 2024 Reg. Sess.) (requiring education on how
abstinence is the only certain way to avoid STDs); MD. CODE REGS. § 13A.04.18.01(D) (West, Westlaw
through Sept. 20, 2024, Md. Reg. Vol. 51, Iss. 19) (requiring education on human sexuality and
diseases); MO. ANN. STAT. § 170.015 (West, Westlaw through 2024 2d Reg. Sess.); N.J. STAT. ANN.
§ 18A:35-4.20 (West, Westlaw through L.2024, c. 62 and J.R. No. 1.) (requiring an emphasis on
abstinence in education in HIV/AIDS, sexually transmitted infections and pregnancy); N.M. ADMIN.
CODE § 6.12.2.10 (West, Westlaw through Vol. XXXV, Iss. 11, June 11, 2024); N.Y. COMP. CODES R. &
REGS. tit. 8, § 135.3 (West, Westlaw through Oct. 23, 2024); 22 PA. STAT. § 4.29(a) (West, Westlaw
through Sept. 21, 2024); TENN. CODE ANN. § 49-6-1302 (West, Westlaw through the 2024 Reg. Sess.);
TENN. STATE BD. OF EDUC., TENNESSEE HEALTH EDUCATION AND LIFETIME WELLNESS STANDARDS,
GRADES K-12 5 (July 2018), https://perma.cc/ASJ6-XSYZ.
Kansas does not require specific inclusions,
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