Summary of Parental Opt-Out Rights for Sex Education in California

Much confusion has been generated by the enactment in 2015 of the California Healthy Youth Act (CHYA), a euphemism given to the latest revision of the state’s main set of sex education laws. The good news is that, while there is much to be concerned about in the legislation, important protections of parental rights remain. The following questions and answers, which are followed by detailed information taken directly from the statutes themselves, should clear up much of the confusion.

 

QUICK Q&A ON SEX ED LAWS
Q: Is sex education now mandated for kindergarten or elementary grades?
A: Absolutely not!

 

Q: Do parents in California still have the right to opt their children out of sex education?
A: Absolutely!

 

Q: Can my child be punished if I opt them out of sex ed?
A: No, that would be illegal.

 

Q: What notice is required to be given to parents about sex education?
A: The notice provisions are detailed and set forth below.

 

Q: Did the Legislature intend for teachers to replace parents in teaching kids about sex?
A: No.

 

Q: Can sex education still promote abstinence?
A: Yes. In fact, sex ed that does not highlight abstinence would be non-compliant.

 

Q: Can a school choose not to promote Planned Parenthood?
A: Yes.

 

Q: Can I opt my child out of LGBT discussions?
A: Yes, if it is presented as part of sex ed.

 

Q: Can a teacher ask my child sex-related questions without my knowledge or consent?
A: No.

 

Q: What is required to be included as part of comprehensive sex education?
A: The list is fairly long but is included below.

 

Q: How is it determined what is “age appropriate” instruction?
A: This phrase is defined by statute.

 

DETAILED ANSWERS ON SEX ED

 

Q: Is sex education now mandated for kindergarten or elementary grades?
A: Absolutely not! The Education Code, in Section 51934, provides:

• Each school district shall ensure that all pupils in grades 7 to 12, inclusive, receive comprehensive sexual health education and HIV prevention education from instructors trained in the appropriate courses. Each pupil shall receive this instruction at least once in junior high or middle school and at least once in high school.
  The same statute then goes on in subsection (b) to allow school districts to begin sex ed sooner. Thus, it is crucial for parents to be engaged the with decision-making of their local school board and let their voices be heard.
• A school district may provide comprehensive sexual health education or HIV prevention education consisting of age-appropriate instruction earlier than grade 7 using instructors trained in the appropriate courses. A school district that elects to offer comprehensive sexual health education or HIV prevention education earlier than grade 7 may provide age appropriate and medically accurate information on any of the general topics contained in paragraphs (1) to (11), inclusive, of subdivision.

 

Q: Do parents in California still have the right to opt their children out of sex education?
A: Absolutely! According to the Ed Code, Section 51938 states:
(a) 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.
The Ed Code further provides, in Section 51939:
A pupil may not attend any class in comprehensive sexual health education or HIV prevention education, or participate in any anonymous, voluntary, and confidential test, questionnaire, or survey on pupil health behaviors and risks, if the school has received a written request from the pupil’s parent or guardian excusing the pupil from participation.
One of the things that changed with the enactment of the California Healthy Youth Act was that parents must now be more proactive to opt-out; school districts can no longer limit sex ed by requiring an opt-in process or skipping the subject entirely (as was permissible before the CHYA).
Also noteworthy from Section 51938 is that parents may choose to opt their children out of “part” of sex ed. Some school districts have mistakenly told parents this is not possible, but state law says otherwise.

 

Q: Can my child be punished if I opt them out of sex ed?
A: No, that would be illegal. Section 51939(b) mandates:
A pupil may not be subject to disciplinary action, academic penalty, or other sanction if the pupil’s parent or guardian declines to permit the pupil to receive comprehensive sexual health education or HIV prevention education or to participate in anonymous, voluntary, and confidential tests, questionnaires, or surveys on pupil health behaviors and risks.
The same Section further states:
(c) While comprehensive sexual health education, HIV prevention education, or anonymous, voluntary, and confidential test, questionnaire, or survey on pupil health behaviors and risks

 

is being administered, an alternative educational activity shall be made available to pupils whose parents or guardians have requested that they not receive the instruction or participate in the test, questionnaire, or survey.