The American Civil Liberties Union of Indiana filed a lawsuit Friday challenging House Enrolled Act 1608, a law which prohibits Indiana teachers from teaching human sexuality in kindergarten through third grade. HEA 1608, which faced statewide backlash and controversy, was signed by Indiana Gov. Eric Holcomb in May and is set to take effect July 1.
The lawsuit was filed on behalf of Indianapolis Public School teacher Kayla Smiley, who claims HEA 1608 infringes on her constitutional due process and First Amendment rights, according to an ACLU of Indiana press release.
While HEA 1608 prohibits instruction on human sexuality, school employees are not prohibited from responding to direct questions about gender and sexuality from students. Additionally, HEA 1608 requires schools to notify parents or guardians within five days if an unemancipated minor requests to use a different name or set of pronouns at school.
[Related: Indiana Gov. Holcomb signs bill prohibiting instruction of gender identity in schools]
Smiley also alleges HEA 1608 is too broad because “instruction” and “human sexuality” are not defined in the legislation. The lawsuit states because these terms are so broad, Smiley cannot determine how she should conform her instruction to the law without losing her teaching license.
Smiley, who will teach first through third grade this upcoming school year, maintains a classroom library with books addressing LGBTQ+ issues and topics, such as the biographies of Harvey Milk and Elton John, according to court documents. The classroom library also holds the book And Tango Makes Three, a picture book based on the story of two male penguins at the Central Park Zoo in New York who raised a chick together.
Court documents state Smiley does not know whether having these books in a classroom library qualifies as “instruction on human sexuality.” The lawsuit also states Smiley does not know if she can allow discussion on issues in the books – such as same-sex relationships and AIDS – in the classroom, even if students wish to discuss or ask questions about these topics.
[Related: 'We say gay!': Indiana legislators advance bill banning instruction of 'human sexuality']
“HEA 1608 is written so broadly that it would be next to impossible for teachers to determine what they can and cannot say to students,” ACLU of Indiana Legal Director Ken Falk said in the press release. “In addition, teachers have a First Amendment right to express themselves as private citizens outside of the classroom, including in the school’s hallways, playground, or before and after school, but the vagueness of this law would certainly have a chilling effect on those rights.”
The ACLU also states in the lawsuit that “instruction” may be interpreted to include all interactions with students, even interactions outside of Smiley’s classroom.
“During the period of time that she is in the school’s hallways, playground, or before and after school, she has the right to engage in private speech that is protected by the First Amendment,” the lawsuit states. “She certainly has that right when she is outside of the school’s property. Nevertheless, the vague and uncertain meanings of ‘instruction’ and ‘human sexuality’ impose a chill on her ability to exercise her right to express herself as a private citizen on matters of interest to the public.”
The ACLU and ACLU of Indiana also filed a lawsuit in April challenging Senate Enrolled Act 480, which prohibits Indiana physicians from providing gender transition procedures to minors. The law also bans gender-affirming care including puberty blockers, hormone replacement therapy and certain surgical procedures for minors in Indiana.
[Related: Governor signs bill banning gender-affirming care for minors in Indiana]
