Judge stays lawsuit over Utah’s ‘no promo homo’ laws in anticipation of legislative fix

Education • A rule prohibiting advocacy of homosexuality would be nullified if bill is OK’d.

A federal judge on Wednesday temporarily halted a lawsuit challenging Utah curriculum laws and policies that prohibit the advocacy of homosexuality in state schools, while lawmakers consider a legislative fix.

The request for the stay was filed Friday in Salt Lake City's U.S. District by the Utah Attorney General's Office in conjunction with Equality Utah, which sued the state over its so-called "no promo homo" laws in October, claiming the statutes are unconstitutional.

The request coincides with the introduction of SB196, which seeks to repeal portions of health education law that bar positive discussions of homosexuality in sex education classes.

Sponsored by Sen. Stuart Adams, R-Layton, SB196 takes no position on homosexuality, but instead stresses "the importance of abstinence from all sexual activity before marriage and fidelity after marriage."

On Tuesday, the bill passed through a Senate committee on a 5-2 vote. It now awaits a discussion by the full Senate.

In court papers, the attorney general's office said the courts routinely grant stays when there is legislation pending that could settle the dispute between the parties, favoring legislative remedies over those crafted by the judiciary.

Parker Douglas, the state's federal solicitor general, had asked U.S. District Judge Dee Benson, who is presiding over the case, to impose the stay to give lawmakers time to enact the bill.

Should SB196 fail — or if Gov. Gary Herbert fails to sign it within 30 days of passage — the lawsuit can resume, Douglas wrote.

If it passes, the sides will meet to discuss any remaining claims or issues and either return to the court with a joint motion to dismiss or seek a schedule for future hearings and filings, court papers say.

Shannon Minter, legal director of the National Center for Lesbian Rights (NCLR), which filed the lawsuit on behalf of Equality Utah, three minor students and their parents, said Wednesday, "School should be a place where all students feel welcome and valued, and we appreciate the legislature's leadership in seeking to advance those goals. We are hopeful these efforts will be successful and help eliminate the need for further litigation."

The lawsuit is the first of its kind, NCLR attorneys have said, and could set a national precedent. At least seven other states have similar laws on the books. Advocates for the lesbian, gay, bisexual and transgender community contend such "don't say gay" statutes unfairly label homosexuality as wrong and leave LGBT students at risk for harassment and discrimination.

Troy Williams, executive director of Equality Utah, said in an email to Equality Utah supporters that SB196 removes "discriminatory education language which has been interpreted to bar discussion of bullying issues, discrimination in student clubs, or access to counseling and help from administration for LGBTQ youth.

"This amendment will ensure all students are treated equally in education instruction. The testimony offered at the [Legislative] hearing bolsters support for our community and will significantly reduce the stigma that LGBTQ students experience in public schools."

Williams added, however, that passage of the bill does not necessarily mean the lawsuit will be resolved. "Utah's sex education law still bans speech that can 'facilitate or encourage the violation of any state or federal criminal law,' " Williams wrote. "This means that Utah's same-sex marriage and sodomy laws remain in state code despite having been ruled unconstitutional by the U.S. Supreme Court."

In an earlier court filing, the attorney general's office said Utah's laws are not discriminatory or unconstitutional because they do not "contain the phrase anti-gay laws."

Also named as defendants in the lawsuit are the Utah State Board of Education and three school districts where the plaintiff students are or were enrolled. The court has issued a protective order preserving the anonymity of the three youths because of their ages.