This writer doesn’t think so. But a new bill may allow some Virginia public schools to designate references to homosexuality in instructional materials as “sexually explicit content.”
Senate Bill 656 was signed into Virginia law by Governor Youngkin on April 6, 2022, requiring Virginia public school boards to create policies for “parental notification of any instructional material that includes sexually explicit content” and providing alternative materials.
Virginia school boards are meant to have adopted these policies by Jan. 1, 2023. However, the final version of the Department of Education’s model policies, on which school boards are meant to base their own, have not been released to the general public as of Jan. 2023.
There has, of course, been a draft.
Many of the comments posted to the VDOE website during the public comment period for this draft (called the “Model Policies Concerning Instructional Materials with Sexually Explicit Content”) expressed worry that LGBTQ+ content would be targeted as a result. And there may be merit to these concerns.
SB 656 cites Code of Virginia 2.2-2827, which we will call “section 2827,” for its definition of “sexually explicit content.” This section includes the vital and potentially controversial phrasing: “…a lewd exhibition of nudity, as nudity is defined in § 18.2-390, sexual excitement, sexual conduct or sadomasochistic abuse, as also defined in § 18.2-390…”
So this definition cites another definition. Hooray.
Section 390, in turn, says “sexual conduct” includes “actual or explicitly simulated acts of … homosexuality.”
Ah. There it is.
But the phrasing of section 2827 is less than perfect. Does the section 390 definition apply to nudity, sexual excitement, sexual conduct and sadomasochistic abuse, or just the first and last words? That’s the big question. And whether or not “homosexuality” is classified as sexually explicit depends on the answer.
According to a retired attorney when presented with the document, “a fair reading of that section is that it incorporates the three definitions for sexual excitement, sexual conduct and sadomasochistic abuse set forth in section 390” – and therefore, lumps “homosexuality” with other “sexually explicit content.”
Or, to be precise, “acts of homosexuality,” whatever that means. Do we need, you know, a new definition inside the definition’s definition?
Yes, the law really is this convoluted. But what does it all mean?
Well, theoretically, if an instructional material which was not sexually explicit but did include references to homosexuality was to be used or required for a class (depending on how you define “instructional materials”…but let’s not get into that), parents would have to be notified and they would have the right to request alternate material for their student.
The bill does not call for censorship of any kind. Additionally, the Fairfax County Public Schools policy created in response to SB 656 (available on Boarddocs.com under code label 3290) protects the kind of hypothetical non-sexual queer content referenced above. However, this stipulation applies only to FCPS—not Virginia as a whole.
Pride Liberation Project, a youth-led queer advocacy organization in Virginia, thanked FCPS for their decision to clarify queerness as not inherently sexual.
“Nothing about our existence as queer students is inherently sexual, but SB 656 threatens to mislabel our community,” the group told FFXnow. “We hope other school districts follow FCPS’ lead and protect the limited queer representation in our classrooms.”
Some school boards, like those for Arlington Public Schools and Loudoun County Public Schools have joined FCPS in specifically protecting queer content. It is unclear if others will follow.
What kind of workload will the new requirement place on teachers? How will students with alternative material participate in class without being exposed to the objectionable content to which their parents object? What does this mean for queer students outside of counties like FCPS? Will they be able to discuss books that represent them in an educational setting? Will they not?
There are still a lot of questions. And there will always be definitions hidden by ambiguous phrases and inartful references to tertiary laws that leave us more confused than before.