Metro Weekly

Federal court declares South Carolina’s “no promo homo” law unconstitutional

Judge rules prohibition on discussing homosexuality in health class violates LGBTQ students' right to equal protections

LGBTQ advocates announce a lawsuit challenging South Carolina’s 1988 “no promo homo” law – Photo: SC Equality.

A federal court has declared a South Carolina law prohibiting LGBTQ content from being discussed in a positive or neutral way in health education classes to be unconstitutional.

The decree comes two weeks after the high school student organization Gender and Sexuality Alliance, along with the Campaign for Southern Equality and South Carolina Equality Coalition on behalf of their members who are public school students, sued the state over its “no promo homo” law. 

Under the 1988 law, discussions concerning homosexuality or same-sex relationships are prohibited in the classroom, except in the context of talking about sexually transmitted diseases. Even any neutral mention or acknowledgement of homosexuality by a teacher could result in disciplinary action against, or dismissal of, that teacher.

Such “no promo homo” laws, which exist in at least five other states, have been fiercely criticized by LGBTQ advocates, who say  that such laws send a message of moral disapproval to students struggling with their sexual orientation or gender identity.

The laws have also been criticized for denying teachers their First Amendment rights, and for creating an environment in which a teacher or administrator may be reticent to intervene on behalf of an LGBTQ student who is being bullied or harassed, for example, lest they be fired for “promoting” homosexuality.

In the consent decree, U.S. District Judge David Norton found that the law is unconstitutional because it violates the rights of LGBTQ students under the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution. As a result, his order bars school administrators from attempting to enforce the law. 

“The Challenged Provision…is a classification based on sexual orientation that is not rationally related to any legitimate state interest, and thus cannot satisfy any level of judicial review under the Equal Protection Clause,” Norton wrote. “The Superintendent and the Superintendent’s officers, assigns, successors, agents, employees, attorneys, and other persons who are acting in concert or in participation with each or any of them, are permanently enjoined from enforcing, applying, or relying on [the statute].”

The court’s decision aligns with an opinion by South Carolina Attorney General Alan Wilson, who argued that the law would likely be held court would likely find the law unconstitutional because it singled out LGBTQ students for negative treatment, while no similar restrictions were placed on discussing heterosexual relationships in health education classes.

“I am very excited that this discriminatory law can no longer be enforced in South Carolina, and I hope we can continue to work toward a more accepting and equal state-wide community,” Eli Bundy, a sophomore who is the president of the Gender and Sexuality Alliance, an organization of high school students at a public magnet school in the Charleston County School District.

“I know how frustrating it can feel to be told by a teacher that they can’t talk about who you are,” Bundy said. “I’m so grateful that no other South Carolina student will have to go through school feeling like they have been erased.”

The South Carolina lawsuit, filed by the National Center for Lesbian Rights and Lambda Legal on behalf of the plaintiffs, is the latest to challenge “no promo homo” laws. In recent years, Utah and Arizona have repealed similar laws in response to nearly identical lawsuits.

“In South Carolina, people across the political and ideological spectrum understand that no one should be excluded because of their LGBTQ identity,” Kevin Hall, the office managing partner at the Columbia-based Womble Bond Dickinson law firm, which is also representing the plaintiffs. “We have common ground in the shared goal of ensuring that all students are safe, respected, and supported in school.

“This court order means that we can put this clearly unconstitutional 32-year-old law behind us, and it marks a new day for LGBTQ students here, who can now go to school without the stigma that this law cast over them,” Hall added. “My hat’s off to the courageous students in South Carolina who spoke out against this damaging law.”

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John Riley is the local news reporter for Metro Weekly. He can be reached at jriley@metroweekly.com

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