Three-year-old sex education law draws a legal challenge

The constitutionality of a 2021 state law governing parental notification of sex-related discussions in public schools is now being challenged by a coalition of Montana students, teachers and associations representing school counselors and psychologists.

The lawsuit, filed Tuesday in Lewis and Clark County District Court by the ACLU of Montana, targets Senate Bill 99, which requires schools to alert parents 48 hours ahead of lessons involving a range of topics related to human sexuality, reproductive rights and LGBTQ issues. The law also requires schools to notify parents of their right to excuse their children from those lessons.

Senate Bill 99 of 2021 is unrelated to Senate Bill 99 of 2023, which bans gender-affirming health care for minors, and which was temporarily enjoined by a district court judge in September 2023 while a legal challenge against it continues.

Arguing on behalf of seven plaintiffs, the ACLU claims that SB 99 has been “weaponized to discipline educators and counselors who seek to introduce holistic, inclusive, and compassionate concepts into the classroom setting about human sexuality, sexual orientation, and gender identity.” The complaint asks the court to immediately halt enforcement of the law, claiming it violates the Montana Constitution and threatens the physical, mental, emotional and sexual health of public school students, particularly those in the LGBTQ community.

In an emailed statement announcing the lawsuit, advocacy chair Erica Parrish of the Montana School Counselors Association — one of the plaintiffs — said SB 99 puts counselors between “the proverbial rock and a hard place.”

“We can either follow our professional and ethical obligations to our students, or we can follow SB 99’s parental notification requirement,” Parrish continued. “It’s impossible to do both.”

The other plaintiffs in the case are the Montana Association of School Psychologists, the social justice nonprofit EmpowerMT, two public school teachers and two students. They’re represented by the ACLU as well as the Bozeman-based law firm Kasting, Kauffman & Mersen and the Boston-based international firm Nixon Peabody.

Gov. Greg Gianforte, state Superintendent Elsie Arntzen, the state Office of Public Instruction and the Montana Board of Public Education are listed as defendants. Board of Public Education Executive Director McCall Flynn was not immediately able to provide comment. Arntzen, in a statement emailed by OPI spokesperson Brian O’Leary, framed Tuesday’s complaint as the latest in a series of partisan attacks by “woke organizations” — the same argument Arntzen raised in response to a separate lawsuit filed against OPI and its leader last month.

“Government bureaucracy doesn’t own our children,” Arntzen wrote. “I stand with Montana parents who are rightfully concerned over sexual indoctrination in the classroom. Montana families have the right to know what their children are being taught and the right to opt-out of participating. I will continue to fiercely defend parental rights.” 

Asked via email for comment from Gianforte, spokesperson Kaitlin Price provided the following statement: “While the governor’s office generally doesn’t comment on ongoing litigation, the governor remains committed to preserving a Montana parent’s role in his or her child’s education, especially a parent’s right to know when a child might be exposed to sexually explicit content in the classroom.”

Much of the argument against SB 99 presented in the complaint echoes criticism of the bill that arose during and after the 2021 legislative session. After the law went into effect, educators in Montana reported widespread confusion about which specific materials the law applies to and how best to make those materials available for public review. Plaintiffs cited that confusion — and an alleged lack of clear guidance from state officials — as one way in which the law has impacted students and teachers, arguing that SB 99’s definition of human sexuality is “flagrantly overbroad.”

The complaint also characterizes the law as part of a “concerted effort” by lawmakers and other state officials to marginalize LGBTQ students in public schools by discouraging discussions of LGBTQ history, literature, art and politics. The plaintiffs claim SB 99 has impinged the ability of school counselors and psychologists to engage in conversations with students about those issues, chilled students’ constitutional rights of free speech and expression, and unconstitutionally imposed “Christian values” as a guide in curriculum development — values, the complaint notes, that were explicitly referenced by lawmakers who supported the bill’s passage.

“It really feels like the goal of SB 99 is to silence people,” plaintiff Eva Stahl, a Montana student, said in a statement distributed by the ACLU. “Teachers are changing how they teach and making it harder for students to access books. I even had one teacher say they were worried about the possible ‘employment consequences’ of openly supporting 2S-LGBTQIA+ students. This law doesn’t protect students, it just makes our lives harder and our schools worse.”

Alex Sakariassen is a reporter for the Montana Free Press, a Helena-based nonprofit newsroom, and can be reached at asakariassen@montanafreepress.org.