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Recognizing the Sexual Rights of Minors in the Abstinence-Only Sex Education Debate by Hazel Glenn Beh* Programs That Promote the Federal Message of Abstinence.7 I

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Recognizing the Sexual Rights of Minors in the Abstinence-Only Sex Education Debate by Hazel Glenn Beh* Programs That Promote the Federal Message of Abstinence.7 I Recognizing the Sexual Rights of Minors in the Abstinence-Only Sex Education Debate by Hazel Glenn Beh* programs that promote the federal message of abstinence.7 I. Introduction As Professor Ravitch has noted, the Estab- lishment Clause may be implicated when In this paper, I briefly describe sexual develop- abstinence-only programs are overtly religious.8 ment milestones of adolescents and their sexual Likewise, as Professor DeGroff has observed, health risks. Acknowledging the fact that ado- lescents are sexual human beings and have all sexuality education may implicate parental rights to raise their children without state attendant health risks and needs compels the involvement. 9 This paper instead considers question: what responsibilities should adult society shoulder to prepare adolescents for what the rights of the adolescent are to sexuality education. The difficulty in fashion- sexual maturity? More specifically, does the ing an argument for sexuality education based current federal policy of funding abstinence- directly upon the needs of minors only-until-marriage sexuality education help or reveals just hinder adult society in meeting its responsi- how impoverished our law is when it comes to children's rights. As Barbara Bennett bilities to our youth? If, as the public health Wood- house has urged, we should be "paying literature is suggesting, abstinence-only educa- atten- tion to children's lives and to what they tion leaves minors unprepared to manage their say and do" rather than "merely listening to what sexuality, does federal support of abstinence- others say about children" if we truly desire only education constitute a constitutional harm that our policies are "conducive to children's against minors? 0 Schools are playing an increasingly impor- growth toward autonomy.' When it comes to tant role in educating and preparing adoles- sexuality, this paper argues that we should be "paying attention to children's lives and to cents for the responsibilities of sexual matura- what they say and do" in order to develop tion,' whereas instruction about human sound sexuality education sexuality and inculcation of sexual values was policies. While there are many competing formerly delegated principally to family and religious, political, and educational views on the topic of church.2 Unlike many school curricular deci- sions, parents, educators, and students are not sex education, this paper attempts to refocus the curricular choices schools the only stakeholders when it comes to devel- make and the oping sexuality education curricula. As with policies they implement on student needs. most socially significant curricular choices that Laws concerning adolescent sexuality have granted teens at least some autonomy and schools must make,3 deciding precisely what privacy rights, perhaps because society recog- should be taught in sex education courses has nizes a certain futility in attempting to sup- long been a difficult and contentious debate. press teenage sexual desire and activity." This Control of the content of sex education is paper argues that a logical regarded as a political battle over who defines extension of the procreative rights America's larger social values. adolescents possess is recog- nition of a corresponding right Currently, federal resources for sexuality to accurate and comprehensive sexuality education. The recog- education are directed exclusively toward a nition of adolescent form of sexuality education called "abstinence- sexual development, understanding of adolescent needs, and respect only-until-marriage." ' The federal government for the rights they already initially provided grants to the states to design enjoy should inform programs to promote abstinence.6 Recently, the school curricular decisions when it comes to federal government has developed funding sexuality education. Part II of opportunities that bypass states and allow this paper describes the sexual maturation of adolescents, including sexual community and faith-based groups to develop minorities, as well as the attending health Vol. 26 * No. 2 * Summer 2006 Hazel Glenn Beh burdens and risks adolescents may encounter. of twelve; 3 boys begin puberty at around Part III describes various approaches to sexual- eleven and a half years of age. 14 Less is known 5 ity education and highlights recent criticisms of historically about the age of puberty in males, the federal government's exclusive focus on but for girls, the modern trend in industrialized abstinence-only-until-marriage education. This nations has been that girls enter puberty at an part discusses recent medical literature that earlier age than in earlier years. In the last indicates that abstinence-only sexuality educa- hundred years, the average age of menarche in tion may actually be placing minors at greater girls in the United States decreased from health risks because of the errors and mis- seventeen to less than fourteen years.' 6 In leading information commonly offered in these males, spermarche, the onset of reproductive courses. Part IV challenges the constitution- capacity, occurs in mid-puberty, at about the ality of abstinence-only education, arguing that thirteen to fourteen years." these courses impair the minor's ability to The "social invention" of adolescence as its make sound procreative and reproductive own developmental stage of life is a recent choices. Concededly, the federal government phenomenon of industrialized societies, includ- need not fund any sexuality education and if it ing the United States. Recognition of adoles- does, it can choose what messages it wants to cence as a unique stage of life "rested on three support. However, this paper argues that the important material changes in the nineteenth government crosses the line when it funds century," according to historian Jeffrey programs that affirmatively mislead minors and Moran." First, the American educational risks harm to their sexual health. system "increasingly segregated and sorted" youth "by age" giving them their own group II. Teens and Sex identity.' 9 Second, on average, American youth There can be no denying the child's biological reached sexual maturity at an increasingly 20 march to adulthood. Sexual maturation awak- younger age. Third, American youth began to ens sexual desires and interests in young delay marriage as "the period of training and people. After the biological process of puberty, education for young men, especially, grew 2 teens have sexual capability. However, indus- longer." 1 Unlike youth of a hundred years ago, trialized societies have recognized a develop- modern youth experience a period of time mental stage of life known as adolescence in where they are sexually mature or maturing, which teens are expected not to engage in but are not yet recognized as adult members of sexual activity, although they have sexual society with full sexual rights. A substantial capacity. Despite social expectations within portion of these years is spent in school, adult society that teens should exercise sexual making teenage sexuality an issue that American schools cannot ignore. restraint, sexually capable teens frequently 23 orientation 22 and gender identity engage in a variety of sexual activities. Sexual Sexual activity exposes teens to preventable health are also commonly developing or solidifying 2 4 risks and burdens that can have grave, lifelong during adolescence. Sexual minorities repre- consequences. sent a significant population within the adolescent community, although there is 1. Adolescent Sexual Development considerable uncertainty as to the precise prevalence of homosexuality 25 and trans- It is useful to recognize that adolescence and genderism 26 in adolescence. Part of the puberty are conceptually different; adolescence is difficulty in estimating prevalence is defini- a developmental stage of life while puberty is tional because as researchers are increasingly the biological process of sexual maturation. recognizing, human sexuality is less categorical Puberty lasts approximately four and a half and more multidimensional and complex than years. 12 Girls in the United States enter once perceived: "[t]he relative heterosexual or puberty at approximately nine to ten years of homosexual direction of each dimension may age and typically begin menstruation at the age be inconsistent with others, defying dichoto- Children's Legal Rights Journal Recognizing the Sexual Rights of Minors mous classification of individuals. 27 Estimating acquiring STDs for a combination of 37 prevalence is also difficult because sexual behavioral, biological, and cultural reasons., identity development during childhood and While adolescents and young adults account adolescence has a relative fluidity.28 Moreover, for twenty-five percent of sexually active even via anonymous surveys, researchers individuals in the United States, they represent "nearly '3 theorize that an adolescent's possible internal one half of all new STDs. 1 In 2003, defensiveness and reluctance toward self- young people between age thirteen and twenty- disclosure may undermine the reliability of four represented twelve percent of those newly data.29 diagnosed with HIV/AIDS. 39 Notably, infection Although sexual activity during the teen rates among teens in the United States are years may not be regarded by adults as socially higher than STD rates in other developed desirable, it is inescapable that teenagers cer- countries. 40 Although teens may perceive non- tainly have sexual and reproductive capacity
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