A New Sex Education: The Title IX Defense Against "Don't Say Gay"

Abstract

Sex education in American public schools has long been the subject of controversy. Although debates overthe inclusion of sex education in schools now focus on students’ access to comprehensive curricula that includes the experiences of queer and transgender students, sex education in the United States has long maintained its roots in the institutional promotion of “sexual purity.” Through an exploration of the latest attacks on comprehensive sex education, particularly in the context of reinvigorated “Don’t Say Gay and Trans” legislation, this Article postulates that a novel interpretation of Title IX of the Education Amendments of 1972 is needed that requires education policymakers to incorporate the experiences and needs of queer and transgender students in
sex education curricula. This Article examines the application of the Supreme Court’s Bostock v. Clayton County decision to Title IX and argues that the prohibition against discrimination in education on the basis ofsexual orientation and gender identity raises a plausible Title IX challenge to non-inclusive sex education curricula.

By first offering a brief historical overview of public sex education curricula in the United States, this Article contextualizes the present need for comprehensive sex education as an impactfulresource forstudents, as well as the unique sexual health challenges faced by queer and trans adolescents. This Article then outlines the important changes to Title IX in the wake of the Bostock decision, President Biden’s 2021 Executive Order implementing Bostock, and subsequent appellate case law. Most importantly, this Article will highlight the potential for Title IX claims to be brought against public schools, districts, and states that offer non-comprehensive sex education curricula that excludes content relating to the unique needs of queer and trans students. This Article concludes by addressing potential challenges to such an interpretation of Title IX in the context of sex education curricula and will underscore the important policy
ramifications of incorporating the experiences and needs of queer and trans students in educational dialogues surrounding sexual health.