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VII. DISCRIMINATION BASED ON GENDER AND SEXUAL ORIENTATION
Lesbian, gay, and bisexual school-age youth in the United States are frequently subjected to violence, harassment and discrimination at school, as Human Rights Watch has documented elsewhere.177 Lesbian, gay and bisexual youth, confronted with the stress of dealing with such treatment on a regular basis, have been shown in some settings to be more likely than their heterosexual peers to use alcohol or other drugs and engage in sexual behaviors that put them at risk of HIV/AIDS.178 Young men who have sex with men face a significant risk of HIV/AIDS infection, as HIV/AIDS incidence and prevalence among young men who have sex with men remains high.179 HIV/AIDS and sex education that addresses the sensitivities of lesbian, gay and bisexual youth has been associated with a reduction in high-risk sexual behavior among this population. A recent study rated fifty-nine schools according to the extent to which teachers perceived the HIV instruction provided in the schools to be sensitive and appropriate to the needs of lesbian, gay and bisexual students. The study found that lesbian, gay and bisexual students in schools who received a "high" level of gay-sensitive instruction were less likely to have had sex in the previous three months, had fewer sexual partners, and were less likely to have used alcohol or drugs prior to last sexual intercourse than lesbian, gay and bisexual students who received "none or minimal" or a low level of gay-sensitive instruction.180 The study noted that effective prevention programs for lesbian, gay and bisexual students are characterized by "inclusive instruction, adequate support services, acknowledgment of diversity, and a nondiscriminatory school climate."181 By definition, however, federally funded abstinence-only programs cannot provide HIV/AIDS or comprehensive sex education that respects the rights and needs of gay, lesbian and bisexual youth. As already noted, federal law requires that federally funded abstinence-only education programs must either teach that a "mutually faithful monogamous relationship in context of marriage is the expected standard of human sexual activity"; that "sexual activity outside of the context of marriage is likely to have harmful psychological and physical effects"; and that "bearing children out-of-wedlock is likely to have harmful consequences for the child, the child's parents, and society"; or not provide any information inconsistent with this instruction.182 Under federal law, "marriage" is limited to "a legal union between one man and one woman as husband and wife"; nor can individuals of the same sex legally marry in any state in the U.S.183 In many states, state legislation or policies exacerbate antigay bias regarding HIV/AIDS and sexuality education by barring the discussion of homosexuality altogether except in the context of sexually transmitted diseases, banning instruction that homosexuality is acceptable, or requiring instruction that homosexuality is unacceptable and illegal.184 To comply with their mandate, abstinence-only programs either must avoid any positive or even neutral discussion of homosexuality altogether or must raise it as a negative issue. In so doing, these programs not only discriminate against gay and lesbian youth based on their status; they also deny gay and lesbian youth access to relevant health information and impede their right to an education free from discrimination. Texas law directs the state department of public health to develop and make available a model curriculum on health education and recommends that course materials and instruction in this curriculum "relating to sexual education or sexually transmitted diseases should include . . . emphasis, provided in a factual manner and from a public health perspective, that homosexuality is not a lifestyle acceptable to the general public and that homosexual conduct is a criminal offence under Section 21.06 of the [Texas] Penal Code."185 Although this statute, by its terms, applies to the health department's model curriculum, teachers in Texas commonly understand it to impose restrictions on what they can say more generally about homosexuality in the classroom. Amy Cavender, a health educator in central Texas, citing this law, told Human Rights Watch,
The abstinence-only programs that Human Rights Watch visited either omit discussion of homosexuality altogether or mention homosexuality only as a risk factor for HIV/AIDS. Several administrators and teachers in these programs interviewed by Human Rights Watch justified the absence of discussion of homosexuality by noting that "the program is developed to promote abstinence until marriage," and, further, that "the community" would not want homosexuality addressed in the school.187 As Dr. Patricia Sulak, the director of the Scott & White Sex Education Program, told Human Rights Watch, "schools are limited as to what they can say about masturbation and homosexuality."188 Kay Coburn, whose school district uses Scott & White's abstinence-only curriculum, explained that there is "no discussion of homosexuality," nor "any message in the curriculum about how homosexuals might protect themselves from HIV. Abstinence is the only message. The traditional family is where you have sex. The curriculum doesn't address sex outside of this structure."189 Cheryl Cox, a health teacher and council member recalled that when the issue of homosexuality was raised at a Robinson school health education advisory council meeting, the council decided that information about these kinds of "lifestyle options" was "not needed or necessary."190 In any event, Ms. Cox added, "I can't see it ever being acceptable to discuss homosexuality, as it's a very conservative community. It's a topic that I'm not supposed to be talking about because of the standards set forth by the community and by the health advisory board."191 Terry Cruz, an abstinence educator in Laredo, told Human Rights Watch that "Probably the only time I touch on the subject [of homosexuality] is with HIV, referring to how HIV originally started."192 Linda Grisham, a high school teacher who has worked on Scott & White's abstinence-only curriculum in the Temple Independent School District and taught in the program, told Human Rights Watch "We [teachers at Temple ISD] don't talk about homosexuality in a love relationship. We bring it up in certain STDs that are more common among homosexuals. People in a homosexual relationship are more apt to catch AIDS because anal sex is risky."193 When asked whether homosexuality was discussed, Clara J., a sixteen-year-old student in a McCAP school replied, "I think that the teacher said something about AIDS being most common among homosexuals," but otherwise could not remember anything being said about gays or lesbians in class.194 Charles T., a nineteen-year-old gay student from a McCAP school recalled that the teacher's discussion of homosexuality was limited to defining homosexuality and advising that if students had any "feelings like this," they should discuss them with parents or a counselor. The teacher also defined marriage as between a man and a woman. Charles added that gay and lesbian students did not feel safe at school and that even teachers made derogatory comments about homosexuality. 195 Dr. Joe McIlhaney, president of the Medical Institute for Sexual Health (Austin), told Human Rights Watch that his program does not address homosexuality. "The message to kids in school is `don't get involved in sex while an adolescent, no matter what.'" In any event, "since 95 percent of the kids are heterosexual and since with the younger ones, there may be lability about sexuality, this may be a situation where it's best to focus on the `greatest good for the greatest number.'"196 The Medical Institute does, however, publish guidelines for sexuality education that are distributed by McCAP, among other groups, and included in a resource guide on abstinence education produced under a cooperative agreement with the U.S. Department of Health and Human Services.197 These guidelines provide advice about answering "tough questions" about homosexuality and bisexuality through a "factual and balanced discussion of homosexuality and bisexuality" that should include, among other points:
These "answers to tough questions" characterize homosexual relationships as both unhealthy and wrong and suggest that for those who have a "homosexual orientation," refraining from sex forever may be preferable for "health, moral or religious reasons." They also conceive of "homosexuals" as male: "homosexual and bisexual sex" is equated with anal sex, and lesbians are absent from this discussion.202 Abstinence-only programs, in teaching that "safe sex" exists only in the context of marriage, assert that marriage itself is a source of positive social, psychological and other health benefits. Dr. Patricia Sulak, director of Scott & White's sex education program and Dr. Joe McIlhaney, president of the Medical Institute for Sexual Health, both told Human Rights Watch that they promote marriage as a public health issue because people who engage in premarital sex are at risk of both physical and psychological danger, while married people enjoy a range of benefits-including better sex lives than unmarried people.203 Marilyn Ammon, the executive director of the McLennan County Collaborative Abstinence Project, echoed this position.204 Program curricula, as well as materials produced and distributed by abstinence-only programs reinforce the position that heterosexual marriage is the only safe and appropriate context for sex. According to a McCAP pamphlet describing the organization, "married people live longer, have higher incomes and wealth, engage less in risky behavior, eat more healthily and have fewer psychological problems than unmarried people.205 "Sexuality, Commitment and Family," one of the curricula that McCAP provides to participating schools, includes chapters on "friendship and dating," "marriage" and "family" that present heterosexual relationships and heterosexual marriage as the ideal, teach that the "nuclear family-that consisting of male-female partnership (marriage) plus their offspring" is the "basic unit of human living" and that "[I]deally, our laws and families should all be aimed at assisting the family to remain intact."206 The Medical Institute's "Building Healthy Futures" instructs that "even youth unfamiliar with the concept of marriage should be introduced to the ideal and taught that marriage is the healthiest context in which to express their sexuality"; lists "same sex attraction" as behavior that increases the risk of sexual activity and therefore sexually transmitted diseases, and teaches that "youth to whom marriage seems an unreachable goal" should be counseled to delay sexual initiation as long as possible, with the goal of convincing them to delay until marriage."207 The Medical Institute's Change Makers seminars asks participants to reflect on whether there is "enough emphasis on values, relationships and the benefits of marriage" in the educational messages to children.208 Proponents of abstinence-only-until-marriage education claim that their programs treat all youth equally, regardless of their sexual orientation, because they give them all the same message, which is abstinence. Dr. Patricia Sulak told Human Rights Watch that schools are limited with respect to what they can say about homosexuality, but that her instruction is that "whatever the sexual behavior is, the best and healthiest choice is abstinence."209 Dr. Joe McIlhaney told Human Rights Watch that he would give the same message to gay and lesbian individuals as he would to others: "if you're going to have sexual activity, limit it to one partner for life."210 Neither of the above statements is consistent with the plain language of abstinence-only legislation and program requirements, which require that federally funded programs teach abstinence until heterosexual marriage, or with the content of abstinence-only materials that the Texas abstinence-only programs distribute . They also ignore both the fact that federal law limits the definition of marriage within the meaning of federal abstinence-only legislation to exclude same-sex couples and that same-sex couples cannot yet legally marry in any state in the U.S.211 The Medical Institute of Sexual Health (Austin), in its National Guidelines for Sexuality and Character Education, advises that although homosexuals should be treated with respect, homosexuals might properly choose to refrain from genital sexual activity altogether for "health, moral or religious reasons."212 Human Rights Watch considers discrimination on the grounds of sexual orientation, including the criminalization of private, consensual behavior between adults and the denial of civil marriage status to people on the basis of sexual orientation, to violate international human rights standards.213 The United Nations Human Rights Committee, the body charged with monitoring compliance with the International Covenant on Civil and Political Rights, has specifically noted that the existence of sodomy laws in the United States is a "serious infringement of private life" and has "consequences . . . . for [the] enjoyment of other human rights without discrimination."214 The U.N. Commission on Human Rights has expressed concern regarding the criminalization of matters of sexual orientation in any country precisely because it "increases the social stigmatization of members of sexual minorities, which in turn makes them more vulnerable to violence and human rights abuses, including violations of the right to life. Because of this stigmatization, violent acts directed against persons belonging to sexual minorities are also likely to be committed in a climate of impunity."215 Human Rights Watch urges the U.S. Congress to enact federal nondiscrimination legislation that explicitly prohibits discrimination on the basis of sexual orientation and gender identity, to bring the U.S. into conformity with international law. This would include repealing the Defense of Marriage Act, which limits marriage under federal law to a legal union between a man and a woman, and provides that no state shall be required to grant legal status to same-sex marriage of another state or to any "right or claim arising from such relationship."216 States should also repeal laws that discriminate on the basis of sexual orientation, including laws that discriminate against couples in same-sex unions, laws that criminalize private consensual conduct between adults of the same sex, and laws and regulations that prevent teachers and service providers from including accurate and nondiscriminatory information to lesbian, gay and bisexual youth in programs of education on sex and sexually transmitted diseases.217 177 See Human Rights Watch, Hatred in the Hallways: Violence and Discrimination Against Lesbian, Gay, Bisexual, and Transgender Students in U.S. Schools (New York: Human Rights Watch, 2001); see also National Education Association, Report of the Task Force on Sexual Orientation, January 14, 2002; Susan Blake et al., "Preventing Sexual Risk Behaviors Among Gay, Lesbian, and Bisexual Adolescents: The Benefits of Gay-Sensitive HIV Instruction in Schools," American Journal of Public Health, vol. 91, no. 6, June 2001, p. 940 (citing studies). 178 Blake, et al., "Preventing Sexual Risk Behaviors Among Gay, Lesbian, and Bisexual Adolescents: The Benefits of Gay-Sensitive HIV Instruction in Schools," p. 940 (citing studies); Human Rights Watch, Hatred in the Hallways, pp. 68-72. 179 According to the Centers for Disease Control, during the period June 2000 through June 2001, young men who have sex with men accounted for 58 percent of HIV cases among thirteen-to-nineteen-year-old males and 23 percent of all cases in this age group, and 55 percent of HIV cases among twenty-to-twenty-four year-old males and 33 percent of all HIV cases among the latter group. Centers for Disease Control, HIV/AIDS Surveillance Report: Midyear Edition , vol. 13, no. 1 (2001), p. 21. See also Linda A. Valleroy et al., "HIV Prevalence and Associated Risks in Young Men Who Have Sex with Men," Journal of the American Medical Association, vol. 284, no. 2, July 12, 2000, pp.198-204. 180 Susan M. Blake et al., "Preventing Sexual Risk Behaviors Among Gay, Lesbian, and Bisexual Adolescents: The Benefits of Gay-Sensitive HIV Instruction in Schools," American Journal of Public Health, vol. 91, no. 6, June 2001 pp. 940-946. Lesbian, gay and bisexual students in the latter schools were also more likely than their heterosexual schoolmates and than lesbian, gay, bisexual and heterosexual students with moderate or high levels of gay-sensitive instruction to report becoming or getting someone pregnant, having a higher number of recent sexual partners, making a plan to commit suicide, missing school for personal safety reasons, and having property damaged or stolen. p. 942. 182 SPRANS-CBAE programs must emphasize all of these elements. AFLA and Section 510(b) programs need not place equal emphasis on all of them but cannot provide any information inconsistent with them. 183 See Defense of Marriage Act, Pub. L. 104-199, 110 Stat. 2419 (1996) (defining "marriage" and "spouse"). Nor is any state, territory or possession of the United States, or any Indian tribe required to give effect to a same-sex relationship that is treated as a marriage under the laws of another state, territory, possession, or tribe, or a right or claim arising from such relationship. Ibid. A report written for the U.S. House Judiciary Committee identified 1,049 federal laws classified in the United States Code in which marital status is a factor. U.S. General Accounting Office, Defense of Marriage Act: Categories of Laws Involving Marital Status, Letter Report GAO/OGC-97-16, January 1997. Vermont permits same-sex couples to get "civil union" licenses that subject parties to the same legal responsibilities and protections as married couples in Vermont but restricts "marriage" to a union between a man and a woman. Vt. Stat. Ann. tit. 15 §§ 1201 et seq (2002). 184 See, for example, S.C. Code Ann. § 59-32-30(A)(5) (barring discussion of "alternate sexual lifestyles from heterosexual relationships including, but not limited to, homosexual relationships except in the context of instruction concerning sexually transmitted disease"); Ariz. Rev. Stat. Ann. § 15-1716 (proscribing schools from including in their course of study about AIDS "instruction which: 1. Promotes a homosexual life-style. 2. Portrays homosexuality as a positive alternative life-style. 3. Suggests that some methods of sex are safe methods of homosexual sex"); Ala. Code § 16-40A-2 (requiring programs on sex education or human reproduction to include, at a minimum, "[a]n emphasis, in a factual manner and from a public health perspective, that homosexuality is not a lifestyle acceptable to the general public and that homosexual conduct is a criminal offense under the laws of the state"); see also Tex. Health & Safety Code § 163.002(8) (recommending that the state's model public health education curriculum include emphasis, provided in a "factual manner and from a public health perspective, that homosexuality is not a lifestyle acceptable to the general public and that homosexual conduct is a criminal offence"). These types of restrictions are also contrary to American School Health Association policy, which recommends that "curriculum materials, teaching strategies, and school policies that do not discriminate on the basis of sexual orientation should be implemented in schools," and that "sexual orientation should be addressed in the sexuality component of a comprehensive health instruction curriculum." American School Health Association (ASHA), "Gay and Lesbian Youth in School" (1990) in Compendium of Resolutions (Kent, Ohio: ASHA, August 1998), www.ashaweb.org/resolutions.html (retrieved on June 17, 2002); see also "ASHA Supports Quality Sexuality Education" (1994) in ibid. 185 Tex. Health & Safety Code § 163.002(8). 186 Human Rights Watch interview with Amy Cavender, May 7, 2002. 187 Human Rights Watch interview with Charmaine Heimes, master teacher, "Mi Futuro/My Future" Abstinence Education Program, Laredo, Texas, May 9, 2002; Human Rights Watch interview with Cheryl Cox, health teacher, Robinson High School, Robinson, Texas, May 3, 2002. 188 Human Rights Watch interview with Dr. Patricia Sulak, director, Scott & White Sex Education Program, Temple, Texas, May 1, 2002. Scott & White's program materials affirmatively state that they are not "talking about homosexuality or masturbation." Scott & White, Worth the Wait Procedure Manual 2002-2003, p. 25. Its instructional materials mention homosexuality only as a risk factor for HIV and anal cancer. Scott & White Sex Education Program, Teens and Sex: What are the Effects, second edition (Temple, Texas: Worth the Wait, Inc., 2001), slide 48; Scott & White Sex Education Program, What Adults Need to Know About Teens and Sex, second edition (Temple, Texas: Worth the Wait, Inc., 2001), slides 39, 48. 189 Human Rights Watch interview with Kay Coburn, curriculum director for math, science and gifted education, Temple Independent School District, Temple, Texas, May 6, 2002. 190 Human Rights Watch interview with Cheryl Cox, May 3, 2002. 191 Ibid. Abstinence-only programs do, however, discuss heterosexual sex. See, for example, Teen Aid Inc., Sexuality, Commitment and Family: Student Text (Spokane, Washington: Teen Aid, Inc., 1995), pp. 45-54; Scott & White Sex Education Program, Teens and Sex: What are the Effects, second edition (Temple, Texas: Worth the Wait, Inc., 2001); The Medical Institute for Sexual Health, National Guidelines for Sexuality and Character Education, pp. 35, 50-52. 192 Human Rights Watch interview with Terry Cruz, health trainer, Nixon High School, Laredo, Texas, May 9, 2002. 193 Human Rights Watch interview with Linda Grisham, May 6, 2002. 194 Human Rights Watch interview, Waco, Texas, April 29, 2002. 195 Human Rights Watch Interview, Waco, Texas, May 2, 2002. 196 Human Rights Watch interview with Dr. Joe McIlhaney, May 10, 2002. 197 See National Center for Education in Maternal and Child Health, Focus on Abstinence Education, August 1996, p. 2. The Medical Institute's guidelines are advertised by Focus on the Family, the Eagle Forum and state abstinence education programs, among others. 198 The Medical Institute for Sexual Health (Austin), National Guidelines for Sexuality and Character Education , p. 74. 203 Human Rights Watch interview with Dr. Patricia Sulak, May 2, 2002; Human Rights Watch interview with Dr. Joe McIlhaney, May 10, 2002. 204 Human Rights Watch interview with Marilyn Ammon, April 29, 2002. 205 McCAP, Empowering People to Save Sex for Marriage. 206 Sexuality, Commitment and Family: Student Text, pp. 29-41, 55-65, 93-103. 207 Building Healthy Futures, pp. 19, 21, 46. 208 The Medical Institute for Sexual Health, Change Makers Participant Manual, p. 33. 209 Human Rights Watch interview with Dr. Patricia Sulak, May 1, 2002. 210 Human Rights Interview with Dr. Joe McIlhaney, May 10, 2002. The Medical Institute's guidelines regarding how to answer "tough questions" about homosexuality and bisexuality likewise advise that a "factual and balanced discussion of homosexuality and bisexuality" should mention that "[r]egardless of sexual orientation, the best way for young people to avoid HIV and other STDs is to follow the recommendation made by the U.S. Department of Education's guidebook AIDS and the Education of Our Children: ` . . . to refrain from sexual activity until as adults they are ready to establish a mutually faithful, monogamous relationship.'" The Medical Institute for Sexual Health, National Guidelines for Sexuality and Character Education, p. 74. 211 See Defense of Marriage Act, Pub. L. 104-199, 110 Stat. 2419 (1996); see also Tex. Family Code §§ 2.001 (marriage license cannot be issued to persons of the same sex), 3.401 ("`spouse' means a husband, who is a man, or a wife, who is a woman"). 212 See The Medical Institute for Sexual Health, National Guidelines for Sexuality and Character Education, p. 74. 213 See Human Rights Watch, Modern Capital of Human Rights? Abuses in the State of Georgia (New York: Human Rights Watch, 1996), pp. 2-3, 155; Human Rights Watch, Hatred in the Hallways: Violence and Discrimination Against Lesbian, Gay, Bisexual, and Transgender Students in U.S. Schools (New York: Human Rights Watch, 2001), p. 162. 214 Consideration of Reports Submitted by States Parties Under Article 40 of the Covenant, Human Rights Committee, 53d sess., U.N. Doc. CCPR/C/79/Add.50 (1995), para. 287 (commenting on the United States' initial report). 215 Civil and Political Rights, Including Questions of Disappearances and Summary Executions, para. 77, Commission on Human Rights, 55th sess., U.N. Doc. E/CN.4/1999/39 (January 6, 1999). 216 Defense of Marriage Act, Pub. L. 104-199, 110 Stat. 2419 (1996). 217 Texas, for example, should repeal Tex. Family Code § 2.001 (prohibiting marriage licenses from being issued to persons of the same sex) and § 3.401 (defining "spouse" as "a husband, who is a man, or a wife, who is a woman"), Tex. Penal Code § 21.06 (penalizing "deviate sexual intercourse with another individual of the same sex"), and Tex. Health & Safety Code § 163.002(8) (recommending that state's model public health education curriculum relating to sexuality or sexually transmitted diseases should include "emphasis, provided in a factual manner and from a public health perspective, that homosexuality is not a lifestyle acceptable to the general public and that homosexual conduct is a criminal offense" under state law).
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