ACLU & CA Dep. of Education Mislead Parents on Opt-Out Rights for Gender & Sexual Orientation Lessons

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Despite what the California Department of Education (CDE) and the American Civil Liberties Union (ACLU) have been telling school districts, parents do have the right to opt their children out of sex education and health lessons on gender, gender identity, and sexual orientation. Attorneys with Alliance Defending Freedom (ADF) explained these rights in a recent legal memo highlighting a 15-year-old California law specifically giving parents the right to opt their children out of health instruction that conflicted with the family’s religious or moral views.

AB 2525, approved unanimously by the state legislature in 2004, states that “if any part of a school’s instruction in health conflicts with the religious training and beliefs of a parent or guardian of a pupil, the pupil, upon the written request of the parent or guardian, shall be excused from the part of the instruction that conflicts with the religious training and beliefs, as defined in the bill.”

Despite this statue, the message parents are getting from many California school districts is the opposite. For example, the Orange County Board of Education told its school districts last spring that parents can’t opt their children out of lessons on gender identity and sexual orientation. That policy was supported by a memo from Ronald Wenkart, General Counsel for the Orange County Department of Education. “Parents who disagree with the instructional materials related to gender, gender identity, gender expression, and sexual orientation may not excuse their children from this instruction,” he wrote. 

CDE makes the same argument on its website stating an opt-out is available for comprehensive sex education lessons that are part of the California Healthy Youth Act, but that’s it. The opt-out “does not apply to instruction or materials outside the context of comprehensive sexual health education, including those that may reference gender, gender identity, sexual orientation, discrimination, bullying, relationships, or family.”  To back up this claim the CDE refers to an ACLU memo which sites the California Healthy Youth Act, and disregards AB 2525 health education opt-out, claiming LGBT orientations, identities, and family issues don’t count as health instruction. **

ADF attorneys strongly disagree.  While acknowledging the statue doesn’t define the term, ADF’s memo says AB 2525 broadly defines “instruction in health” pointing to the California State Board of Education’s own “Health Education Content Standards.” Topics listed within these standards include sexual development, reproductive health, interpersonal relationships, body image, gender roles, and sexual orientation. 

In order to promote the AB 2525 health instruction opt-out, two organizations allied with the California Family Council, Real Impact and Capitol Resource Institute put together a special website called  “Let Parents Decide.” This resource seeks to put parents back in charge of determining what their children learn about human sexuality. It does this by providing them with a special opt-out notice parents can give their school administrators to opt their children out of objectionable sex education lessons, sexual behavior surveys, as well as health lessons that conflict with the family’s religious training or moral convictions regarding gender identity and sexual orientation. 

**Special Note: The ACLU argues that a single court decision in Alameda County in 2009 excludes LGBT issues from the definition of “health education.”(see page 4)  Pacific Justice Institute attorney Kevin Snider, representing the parents in the case, responded with the following statement. “The ACLU has either misread — or has been misled — about the case in Alameda.  First, the school district asserted that the curriculum did not involve health instruction and thus not subject to parental opt-out. Second, shortly after filing an appeal of the court order, the district withdrew the controversial material.  The reason is that, at the insistence of homosexual activists, the anti-bullying lesson in question exclusively focused on LGBT students and intentionally kept out bullying based on race, sex, disability, nationality, and religion. Finally, ACLU attorneys should be aware that a trial court order provides no legal precedent.” Read more about this case here

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