Utah law prohibits the “advocacy of homosexuality”—including so much as a positive reference to gay people—in “any course or class” at public or charter schools, while banning student groups that promote LGBTQ tolerance. Is this legal? Of course not! And now Equality Utah, the National Center for Lesbian Rights, and the law firm Ropes and Gray are suing to invalidate the law as a gross violation of students’ and teachers’ constitutional rights.
What’s striking about Utah’s anti-gay school rules is that, unlike many free speech and equal protection violations, they are completely upfront about their (constitutionally proscribed) purpose. The clear intent of these regulations is to suppress all support of LGBTQ equality at school and forbid instructors and students from recognizing the existence of gay people. Utah’s school code does this by stifling any expression that would recognize the validity of the gay identity. That, in turn, prevents schools from addressing anti-gay bullying and intolerance among students. The result—as the tragic stories of the three terribly persecuted plaintiffs in this case demonstrates—is a school system that refuses to treat gay students with dignity and respect, leaving them with potentially lifelong trauma.
Unfortunately for Utah, the Constitution doesn’t actually permit any of this. First of all, the ban on “advocacy of homosexuality” in school constitutes a viewpoint-based suppression of expression intolerable to the First Amendment. Under the rules, students and teachers can promote heterosexuality and criticize homosexuality—but they cannot promote homosexuality. While free speech protections are somewhat diminished behind the schoolhouse gate, they do not disappear altogether, and Utah’s attempt to regulate speech advocating for a particular social or legal issue cannot possibly survive constitutional scrutiny. Indeed, the First Amendment was designed in part to prevent the government from interfering with the free exchange of ideas by censoring the promotion of ideas it dislikes.
Second, the Utah laws are an obvious violation of the 14th Amendment’s guarantee of equal protection. State actions motivated by mere animus toward gays are invalid under the Equal Protection Clause, as are laws designed to stigmatize LGBTQ people. The Utah school rules fit both bills. As the lawsuit notes, Utah’s censorship:
harms LGBT students, students with LGBT parents, and students perceived as LGBT by stigmatizing them, encouraging teachers and other students to view them as different and inferior, encouraging other students to bully and harass them, discouraging teachers and other school officials from including them in school activities and from protecting them against bullying and harassment, interfering with their healthy development and socialization, harming their long term health and well-being, and fostering an environment in which LGBT students are ostracized and harassed by other students.
Because stigmatizing gay students was both the purpose and intent of the Utah laws, they simply cannot pass muster under the Equal Protection Clause.
Finally, Utah’s regulations violate two federal laws: Title IX and the Equal Access Act. Title IX prohibits discrimination on the basis of sex, including sexual orientation, in schools that receive federal funding—a form of discrimination that Utah’s current laws mandate. The Equal Access Act bars federally funded schools from discriminating against “any students who wish to conduct a meeting” based on the “content of the speech at such meetings.” Utah’s ban on student clubs that promote LGBTQ tolerance directly contravene this statute—which was originally designed to permit Bible study on public school campuses but has become a critical tool in the fight for gay-straight alliances and other LGBTQ clubs.
Utah’s anti-gay school regulations will almost certainly be struck down in court. But they remain an important reminder that, in post-marriage-equality America, not every state is especially eager to provide equal rights to gay people. Utah is so terrified of LGBTQ equality that it is actively censoring pro-gay speech in an effort to turn young minds away from tolerance. Luckily, the Constitution guards against the manipulation of the marketplace of ideas. But rest assured that Utah will soon find subtler and more insidious methods to relegate its LGBTQ residents to a scorned and invisible second-class citizenship.