Indiana’s “Don’t Say Gay” HB 1608: Let’s Talk About Sex, Baby
If Indiana really wanted to follow in Florida’s footsteps, a northern outpost of Walt Disney World or LEGOLAND would be a great place to start. We would be delighted to bring a Wizarding World of Harry Potter to Hoosiers.
Adopting a watered-down version of Florida’s "Don’t Say Gay” legislation was not the route we would have suggested.
But Indiana’s HB 1608 has passed and becomes effective July 1, 2023. This bill prompts more questions than answers, and leaves Indiana schools scrambling before the 2023-24 school year.
We’re here to help.
Legislative bills create or revise existing laws on the books. In this case, HB 1608 creates two brand new statutes:
Instruction on human sexuality (creating a new statute: I.C. 20-30-17)
Outing students with changed names, pronouns, or titles (creating a new statute: I.C. 20-33-7.5)
These statutes do not apply to private schools; only public schools (including charters), laboratory schools, Indiana School for the Blind and Visually Impaired, and Indiana School for the Deaf.
As Maria von Trapp sang, Let’s start at the very beginning… a very good place to start. We’ll break down the first part of this bill here:
Instruction on Human Sexuality (I.C. 20-30-17)
The Law Says:
Schools may not provide “any instruction to a student in prekindergarten through grade 3 on human sexuality.” However, school employees can respond to a question from a student regarding “human sexuality.”
Teachers can still provide instruction on “academic standards” and “instruction required” by Indiana Department of Education.
Unanswered Questions:
What is “human sexuality?”
Putting aside the fact that there are centuries of study dedicated to this complex issue, the Indiana legislature has not defined the term “human sexuality.” The phrase is only mentioned two other times in Indiana law: I.C. 20-30-5-13, which states that when schools teach “human sexuality or sexually transmitted diseases,” they must encourage abstinence outside of wedlock, and I.C. 20-30-5-17, which allows parents to review all instructional materials related to human sexuality and to opt their child out of that instruction.
Nothing in any of these laws mention sexual orientation, gender identity, human anatomy, or bodily autonomy (although those are all very distinct and separate topics, but lawmakers commonly lump them together). Compare that to Florida, which explicitly prohibits instruction on “sexual orientation and gender identity.” Earlier versions of HB 1608, which were eventually amended, would have prohibited “studying, exploring, or informing students about gender fluidity, gender roles, gender stereotypes, gender identity, gender expression, or sexual orientation” — that was all abandoned in the final bill.
Therefore, to the extent first grade teachers are teaching six-year-olds that the best way to avoid chlamydia is to establish a “mutually faithful” marriage, teachers need to stop that instruction after July 1st.
(Spoiler alert: No. Teacher. Has. Ever. Done. This.)
While this law can undoubtedly have a chilling effect on scared teachers discussing anything related to LGBTQIA+ topics in their classrooms, it doesn’t need to. The law does not mention gender identity or sexual orientation at all. In reality, I.C. 20-30-17 prohibits instruction about human sexuality in preK-3rd grade, which to the best of our guess means sexual intercourse and sexually transmitted diseases.
Does this law mean teachers can’t use materials that feature LGBTQIA+ individuals or themes?
There will be a lot of PreK-3rd grade teachers carefully looking at their materials for the 2023-24 school year. Many of us at Imprint Legal Group led classrooms and would testify that educators desperately want each child in their care to feel safe and seen, and want to stay out of controversial school board meetings.
While community controversy is different than legal compliance, there is nothing explicit in this law that would prohibit, for example:
a teacher having photos of their same-sex partner or their trans* child in their classroom
using inclusive materials to provide instruction on academic standards, like a teacher using And Tango Makes Three or Stella Brings the Family to instruct children on examples of how to be a responsible family member and member of a group, which is an Indiana state standard required to be taught in kindergarten
instruction on lessons like “boys can wear dresses and girls can wear pants and good citizens show respect to everyone in our community regardless of their outfit,” as Indiana state standards require instruction on “getting along with others and becoming a good citizen” for young children
Doesn’t this law violate Title IX and other federal protections based on sex, gender, and sexual orientation?
It may. The Florida “don’t say gay” statute is currently being litigated in court, as are similar state laws. The new statute attempts to be facially neutral (i.e., by prohibiting “human sexuality” instruction instead of “gender identity discussions,” it doesn’t explicitly target LGBTQIA+ people on its face), but Title IX of the Educational Amendments of 1972, Title VII of the Civil Rights Act of 1964, and the 14th Amendment can be violated if a school only applies the law against LGBTQIA+ students or teachers. Schools must be consistent in its enforcement amongst all individuals. For example, a principal requiring a gay teacher to submit all books used in the classroom for advance approval but not “policing” a straight teacher’s selected books is likely a violation of Title IX and Title VII.
How is this law enforced?
Unlike Florida’s law, which allows parents to bring a civil lawsuit against the school district or ask for a specially appointed magistrate to have a mini-hearing, Indiana’s law has no explicit enforcement mechanism.
We’ve heard some legal experts express concern that certain unnamed politicians who get high on media coverage could threaten to revoke someone’s teaching license for performing some vague action that the politician believes falls under “human sexuality instruction.” (A teacher’s license can be revoked for immorality, misconduct in office, incompetency, or willful neglect of duty under I.C. 20-28-5-7.)
In reality, it would be incredibly difficult to prove a teacher was engaged in instruction on human sexuality in preK-3rd grade which qualified for the legal revocation of their teaching license, but that would not stop a media circus nonetheless. Public pressure and the threat of media attention is, right now, the de facto enforcement mechanism for this law.
What’s the future look like with this law?
This law was created to “solve” a problem that doesn’t exist (How many second grade teachers are instructing kids about sexual abstinence outside of wedlock? None.) and includes no explicit penalties for violating it.
The ACLU says this law “effectively ban[s] discussion or acknowledgement of LGBTQ people in schools.” We’re not sure we’d go that far, but we do believe this law will have a dramatically chilling effect on teachers and families who are scared of persecution or angry community members.
Our next blog post will dissect the second statute created by HB 1608: Parental notification for name or pronoun changes.
Update 6/9/23: ACLU has filed a complaint to challenge HB 1608. ACLU has asked the federal court to declare that Indiana Code § 20-30-17-2 (effective July 1, 2023) is unconstitutional (violating the 1st and 14th Amendments) and for a preliminary injunction (aka “a stop button”). We’ll keep you updated on the case’s progress.
Imprint Legal Group partners with schools and businesses to create inclusive spaces while complying with state and federal laws. To provide training for your school or discuss any questions about your particular situation, contact: hello@imprintlegalgroup.com.
All posts of Imprint Legal Group and its authors are intended as information, not legal advice.
