Rosky files lawsuit against State of Arizona challenging anti-gay curriculum laws

University of Utah S.J. Quinney College of Law Professor Clifford Rosky, along with the National Center for Lesbian Rights, Lambda Legal, and pro bono counsel Perkins Coie LLP, today filed a federal lawsuit on behalf of Equality Arizona, including its members who are public school students, challenging the State of Arizona’s anti-LGBTQ curriculum law, which bars students from receiving medically accurate, age-appropriate information about non-heterosexual people in their health education classes.

Arizona law prohibits instruction in HIV/AIDS curriculum that “[p]romotes a homosexual life-style,” “[p]ortrays homosexuality as a positive alternative life-style,” or “[s]uggests that some methods of sex are safe methods of homosexual sex.”

The lawsuit was filed in the U.S. District Court for the District of Arizona on behalf of Equality Arizona, a non-profit organization that advocates for the equality of LGBTQ people. The organization includes student members, two of whom are described in the complaint. One student, referred to by the anonymous initials, “A.A.,” is a gay freshman in a greater Phoenix high school. Another student, who is identified by the initials S.C. and is also named as a plaintiff, is a seventh-grade student at a middle school in Tucson. The lawsuit argues the anti-LGBTQ curriculum law violates the equal protection clause of the U.S. Constitution.

Rosky’s research and expertise will play a fundamental role in the lawsuit.

“We know that Arizona schools are not safe spaces for LGBTQ students,” said Michael Soto, Executive Director, Equality Arizona. “Recent surveys of LGBTQ students reveal that almost 80 percent regularly heard homophobic remarks, 71 percent experienced verbal harassment, and 12 percent were physically assaulted. A state law that explicitly demeans and dismisses LGBTQ students and their relationships cannot help but encourage that abuse and discrimination. The toxic school environment created by this law also contributes to higher rates of depression and suicidal thoughts among LGBTQ students.”

Arizona’s anti-LGBTQ curriculum law was enacted nearly thirty years ago in 1991.

Rosky has done significant work on anti-gay curriculum laws. In 2017 he published a comprehensive study of anti-gay curriculum laws in Columbia Law Review. His research prior to the latest lawsuit was cited in Arizona’s public policy discussions about the issue. (View recent story by National Public Radio affiliate KJZZ in Phoenix here).

Rosky’s research, titled “Anti-Gay Curriculum Laws,” explores which issues the lesbian, gay, bisexual, and transgender (LGBT) movement should prioritize in the aftermath of the U.S. Supreme Court decision to legalize gay marriage. Rosky’s research provides a framework for a national campaign to invalidate anti-gay curriculum laws—statutes that prohibit or restrict the discussion of homosexuality in public schools.

Professor Clifford Rosky

“These laws are artifacts of a bygone era in which official discrimination against LGBT people was both lawful and rampant. But they are far more prevalent than others have recognized. In the existing literature, scholars and advocates have referred to these provisions as “no promo homo” laws and claimed that they exist in only a handful of states,” Rosky’s research states.

Based on a comprehensive survey of federal and state law, the research shows that anti-gay provisions exist in the curriculum laws of 20 states, and in several provisions of one federal law that governs the distribution of $75 million in annual funding for abstinence education programs.

“In light of the Supreme Court’s rulings in four landmark gay rights cases, these laws plainly violate the Constitution’s equal protection guarantees, because they are not rationally related to any legitimate governmental interests. For the moment, however, federal and state officials still have the legal authority to enforce these laws, because no court has enjoined them from doing so. By challenging one of the country’s last vestiges of state-sponsored homophobia, advocates can help to protect millions of students from stigmatization and bullying, giving them an opportunity to thrive in our nation’s public schools,” the research states.

Rosky’s research also provided the foundation for a lawsuit filed in Utah by 2017 by Equality Utah in federal court challenging state laws that ban positive speech about LGBT people in Utah public schools. The lawsuit, which Equality Utah won, claimed that the laws violate the U.S. Constitution and federal education law by discriminating against LGBT people and restricting the First Amendment rights of students and teachers. It was the first of lawsuit in the country to challenge a statewide anti-gay curriculum laws, commonly known as “no promo homo” laws.  The Equality Utah lawsuit also led to the passage of SB196 in the Utah State Legislature, designed to repeal the state’s current “no promo homo” law.

Read more about the case in Arizona here: