Last Updated on October 29, 2021 by Michelle Ball
By Michelle Ball, Sacramento California Expulsion, Special Education, sports/CIF, College, Education and School Attorney/Lawyer for Students since 1995
Parents have rights regarding their children’s sexual education. Whether to let a school instruct a student in sex ed is up to the family.
Sexual Education Has Changed
Do you remember your sex education classes in school? I do. I had a single one in the eighth grade. My sex ed class involved a teacher who decided to fill the long semester reading “The Princess Bride” (what a fantastic book!). Needless to say, she really did not have a semester’s worth of topics to discuss.
At that time, the 1980s, we covered mainly heterosexual relations and birth control. Today, it is a whole different situation, with all forms of sexual relations explored.
Sex ed now covers in detail all types of sexual relations. This includes gay, straight, lesbian, and transgender sexual relations, plus masturbation, oral, vaginal, and anal sex, abortion and birth control, among other subjects.
What Grade Can Sex Education Start In Public Schools?
Per the “Healthy Youth Act” law and the State Board of Education, sexual education is not legally mandated to start until seventh grade. However, schools have the option to begin instruction in elementary school.
Sex ed can start as early as kindergarten. How early this can go was exemplified several years ago when a teacher in San Francisco took her first grade class to a lesbian wedding for sex ed purposes. Sex education can continue throughout elementary, middle school and high school.
What is taught in sex ed now is not what I was taught way back when. If a parent may not approve of the graphic instruction regarding sexual relations from their local public school, the parent has the right to opt out of student sex ed instruction.
Sexual Education May Be Objectionable to Some Parents
Sex ed has really expanded over time and sexual education covers a wide variety of topics nowadays. Topics include gay and lesbian sex, heterosexuality, reproductive rights, abortion and birth control, anal, vaginal and oral sex, and the whole gamut of sexual activities. It is reportedly quite graphic and broad.
If parents squirm when thinking about a public school educating their children with sexual videos, graphic books and detailed relationship discussions, they can object by opting out.
Parents Right To Opt Out of Sex Ed
Per California Education Code section 51938, parents have an absolute legal right to opt students out of school sexual education:
“A parent or guardian of a pupil has the right to excuse their child from all or part of comprehensive sexual health education, HIV prevention education, and assessments related to that education through a passive consent (“opt-out”) process. A school district shall not require active parental consent (“opt-in”) for comprehensive sexual health education and HIV prevention education.”
The sex ed opt out right is a “passive” parental right. This means that parents will not get some legal form asking for permission to provide sexual education to a student. Rather, there will be a blanket notice on sexual instruction sometime in the school year. If the parent does not exercise their opt out rights, sex education can and will start.
The state Superintendent of Education states :
“The law prohibits active consent for any part of comprehensive sexual health education or HIV prevention education. Passive (not active) parent/guardian notification is required for comprehensive sexual health education and HIV prevention education, either at the beginning of the school year or at least 14 days prior to instruction.”
This means sexual instruction will start for the student unless a parent exercises their right to object to sex ed.
Document From Parent Required to Opt Out of Sex Education
If a parent wants to exercise their right to opt out of sexual education, they must provide written notice to the school.
Per California Education Code section 51938(b)(4): “to excuse their child they [parents] must state their request in writing to the school district.”
How this objection to sex instruction is written is up to the parent.
Follow Up With Sex Ed Teachers
After a parent provides their written opt out notice on sex education, the parents job is not over. Parents still need to follow up and ensure their sexual education opt out request is actually being honored.
It is very possible that although a school file may contain the parent’s opt out request, teachers may not have been notified. Or, a parent’s sex ed opt out request may have been forgotten.
As such, parents need to, in addition to providing written notice, also communicate their desire to opt out of sexual education directly to teachers.
Annual Sex Ed Opt Out
Parents should resubmit a written sexual education opt out notification annually to the school if they want to prevent sexual instruction.
Parents Cannot Opt Out of Everything
A parents right to opt out of sex education does not cover EVERYTHING. Subjects such as gender, gender identity, gender expression, sexual orientation, the physical parts of the body, and otherwise may still be discussed, regardless of a parent’s written request.
Parent and students rights lawyer Michelle Ball assists with school and college issues throughout California, from Sacramento to Chula Vista. As a student attorney she can assist in San Francisco, Monterey, Los Angeles, Stockton, Elk Grove, Roseville, Clearlake and many other places.
Education Attorney for Students
LAW OFFICE OF MICHELLE BALL
717 K Street, Suite 228
Sacramento, CA 95814
Please see my disclaimer. This is legal information, not legal advice and no attorney-client relationship is formed by this posting. This blog may not be reproduced without permission from the author and proper attribution of authorship. This blog may not reflect the current state of the law.