Educators, Students Challenge Sex Education Law 

A coalition of Montana teachers, students and school officials on Tuesday filed a lawsuit challenging a 2021 state law that requires parental notification ahead of lessons on human sexuality or gender. 

Attorneys from the ACLU of Montana, Nixon Peabody, LLP and Kasting, Kauffman & Mersen, P.C. filed the lawsuit on behalf of plaintiffs Empower MT, the Montana School Counselors Association, the Montana Association of School Psychologists, teachers Daniel Johnson and Libby Threadgoode, and students R.S. and Eva Stahl. Gov. Greg Gianforte, Superintendent of Public Instruction Elsie Arntzen and the Montana Board of Public Education are listed as defendants. 

Senate Bill 99, the challenged 2021 law, allows parents or guardians to remove children from human sexuality instruction, which is defined as instruction related to “intimate relationships, human sexual anatomy, sexual reproduction, sexually transmitted infections, sexual acts, sexual orientation, gender identity, abstinence, contraception, or reproductive rights and responsibilities.” The law also mandates school districts notify parents or guardians in advance of such instruction, which includes a class period, an assembly, an organized school function, or instruction provided by the district through staff or guests. Additionally, the law mandates districts make all human sexuality instruction materials available for public inspection ahead of lessons and bans any entity that provides abortions from offering human sexuality materials or instruction. 

The law is separate from the Senate Bill 99 that was passed in 2023, which bars certain types of gender-affirming healthcare for transgender minors. 

In a Tuesday press release, Marthe VanSickle, staff attorney for the ACLU of Montana, wrote that the law “is fostering damaging self-censorship within Montana’s schools and making it harder than ever for school staff to support students.” 

“Without clear guidance on the issues that fall under the scope of SB 99, teachers, librarians, and others are at risk of discipline if they unknowingly violate this legislation. SB 99 has left Montana schools navigating uncertainty and vulnerability which stifles learning opportunities for students and threatens free exchange of ideas,” VanSickle said. 

A spokesperson for Arntzen provided the following statement on behalf of the superintendent: “Woke organizations are once again attacking me because I am a conservative and I’m standing for parental rights. Government bureaucracy doesn’t own our children. 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.”

Board of Public Education Executive Director McCall Flynn declined to comment on the lawsuit as the board has not yet been served the formal complaint. 

A spokesperson for the governor’s office wrote via email, “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.” 

In the lawsuit, filed in Lewis and Clark County District Court, plaintiffs argue that an overly-broad definition of human sexuality instruction has made it difficult, if not impossible, for educators to discern what material must be notified, creating a risk of professional or legal discipline for teachers and librarians. In addition, plaintiffs argue that Senate Bill 99 deliberately curbs the ability of educators to discuss two-spirit and LGBTQ+ individuals, creating “a deeply chilling effect on any inclusive and compassionate discussion or instruction” on queer individuals and communities. 

“SB 99 is part of a concerted effort by the Legislature and the Defendants to erase [two-spirit] 2S-LGBTQIA+ histories, viewpoints, and curricula from public instruction. It is also part of a coordinated effort to create a climate of hostility towards 2S-LGBTQIA+ individuals. In short, SB 99 marginalizes the history, concerns, experiences, and aspirations of the 2S-LGBTQIA+ community,” the lawsuit reads. 

The passage of Senate Bill 99 has forced school districts across the state to reconfigure parental notification policies, raising questions about what does and does not count as human sexuality instruction. 

The Kalispell Public Schools in October 2022 revised district policy to require notification of human sexuality instruction 48 hours in advance. Prior to the policy revision, middle and high school parents would receive an annual notice if their child was enrolled in health or sex education classes that covered grade-appropriate instruction on the body and reproduction.  

Former Kalispell Public Schools Superintendent Micah Hill told the Montana Free Press in 2022 that the law is “an unnecessary layer of bureaucracy and overreach by the state to insert itself into locally controlled and elected school boards.”

Hill is now the superintendent of the Missoula County Public Schools. 

Educators in the lawsuit argue that the law does not just restrict LGBTQ+ content, but raises concerns about traditional classroom materials and is “astonishingly vague and of doubtful use.” 

Plaintiffs claim that books like “Romeo and Juliet” would technically require notification given that “sexual orientation refers to any sort of relationship or type of love, from heterosexual relationships to queer relationships” and that “there are very few works of English literature that do not implicate or reference sexual orientation in some form.”

“Last school year, one of my students opted out of reading “The 57 Bus,” by Dashka Slater, a nonfiction book with an agender protagonist,” plaintiff Daniel Johnson, a Yellowstone County high school English teacher, said in a press release. “That student was provided with an alternative, but his parents said that they didn’t want their student to read that book, either. Curriculum directors then requested to review the syllabus, but never followed up, and the student was barred by his parents from reading either the original text or the alternative text. Instead, he spent 2-3 weeks in the library without any English instruction. This is the type of education that SB 99 imposes on Montana students.”

Proponents of the law argue that parents and guardians should have more say when it comes to what their children are learning in school. 

The full lawsuit can be read below. 

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