This article was originally published in Daily Montanan.
A group of Montana students, teachers, librarians, and organizations representing school counselors and psychologists filed a lawsuit Tuesday seeking to block the 2021 law that requires school staff to notify parents 48 hours in advance if they plan to teach or discuss anything with students that involves “human sexuality.”
The group asked a Lewis and Clark County District Court judge to permanently block the Senate Bill 99 passed during the 2021 legislative session and signed into law by Gov. Greg Gianforte, saying it violates multiple provisions of the state Constitution ensuring rights to freedom of speech and expression, privacy, due process, equal protection and a quality educational opportunity.
“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,” said Marthe VanSickle, an attorney at the ACLU of Montana, which is one of three law firms and organizations representing the plaintiffs. “SB 99 has left Montana schools navigating uncertainty and vulnerability which stifles learning opportunities for students and threatens free exchange of ideas.”
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In response, the Governor’s Office and Superintendent of Public Instruction Elsie Arntzen said they remain committed to the law and ensuring a parent’s right to know if their children are learning about explicit content at school.
“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,” the governor’s spokesperson, Kaitlin Price, said in a statement.
The plaintiffs include the Montana School Counselors Association, Montana Association of School Psychologists, a Billings high school English teacher, a Billings West librarian and teacher, two students and EmpowerMT, an organization that provides training to several districts in the state about how to build more inclusive school communities.
They are suing Gianforte, Arntzen, her Office of Public Instruction, and the Montana Board of Public Education, alleging the law’s vagueness is creating abundant issues for educators, the Two Spirit and LGBTQ+ community, and mental health professionals that work with students because the law is being “weaponized” to shut down discussions and lessons that some parents might morally object to.
“SB 99 is part of a concerted effort by the Legislature and the Defendants to erase 2S-LGBTQIA+ histories, viewpoints and curricula from public instruction,” the lawsuit says. “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 group says the law has led to teachers, librarians, counselors and psychologists avoiding discussing gender identity, sexual health, and even legal decisions in lessons that are not planned in advance so they don’t risk potential punishment for violating the law. They say nearly three years on, they have received little guidance about exactly when they should be notifying parents two days in advance of any lesson or discussion.
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The lawsuit says Two Spirit and LGBTQ+ students are also unable to learn more about those communities and that the law also subjects them to being further singled out because of their identities and subject to bullying. It says that students cannot engage in spontaneous conversations in school groups like a Genders and Sexuality Alliance without first notifying parents.
And it says the law is violating the constitutional requirement for quality educational opportunities for Montana students because the restrictions surrounding sex education are not informing students of healthy practices and are paring down their opportunities to learn as much as they wish.
The suit calls the law “astonishingly vague” and says the challenge comes in part because the Montana Legislature failed to refine definitions in the bill of what constituted “providing information” or “maintaining a curriculum” during the 2023 legislative session. Two bills that aimed to amend that section of the law both died in the process.
And it says that the discussion over the bill in 2021 signaled a legislative intent to enforce “Christian values” in Montana’s public schools that would violate the state Constitution.
The educators say they have had to stop teaching certain books and topics, that classroom libraries have been shut down, that they’ve had to question whether their mental health discussions with students violate the law and have faced harassment from the community for trying to teach about LGBTQ+ history and rights.
“SB99 gives anti-2S-LGBTQIA+ parents a potent cudgel against any teacher, counselor, school psychologist, or librarian who is dedicated to tolerance, inclusivity, and compassion in the classroom and school,” the suit says. “As a result, teachers, counselors, and school psychologists are likely to continue to steer clear or any instruction or counseling that might put them in the crosshairs of SB 99 and its proponents, to the detriment of public-school students across the State.”
For the two student plaintiffs, the suit says the law is preventing Two Spirit and LGBTQ+ students from accessing information about the community and scientific material on sexuality and gender identity. And it is keeping student peer educators from speaking with other students to better inform them about sexual health and relationships, the lawsuit says.
“Every student has a right to access information about human sexuality without censorship from their teachers and without fear they are running afoul of SB 99,” the suit says. “As a result of the hostile climate SB 99 has created, R.S. and her peers will go out into the world as adults without the quality education to which they are entitled under the Montana Constitution.”
It contends that school psychologists and counselors have also had to change their practices surrounding what they can say to students, even involving serious matters like suicidality, which goes against best practices for their professions.
“Many of those conversation are, by necessity, confidential,” Montana School Counselors Association Advocacy Chairperson Erica Parrish said in a statement. “SB 99 places school 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 parent notification requirement. It’s impossible to do both.”
The lawsuit claims the law violates the Montana Constitution by chilling speech, infringing on the privacy rights of students and educators, and not giving the plaintiffs due process because of its vagueness. It says the law violates the equal protection clause because it disproportionately affects Two Spirit and LGBTQ+ students, and does not afford Two Spirit and LGBTQ+ students the chance to receive a quality education.
The attorneys in the case are asking a judge to find the law to be unconstitutional, to award nominal damages to the student plaintiffs, as well as attorneys’ fees and costs.
In a statement, Arntzen, who is running in the Republican primary for Montana’s 2nd Congressional District seat, said the lawsuit was an attack on her because she’s a Republican who supports more parental involvement in Montana classroom curriculum.
“Woke organizations are once again attacking me because I am a conservative and I’m standing for parental rights,” she said. “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.”
Daily Montanan is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. Daily Montanan maintains editorial independence. Contact Editor Darrell Ehrlick for questions: info@dailymontanan.com. Follow Daily Montanan on Facebook and Twitter.