PHOENIX — Gov. Doug Ducey on Tuesday vetoed what would have been the most restrictive measure in the nation on what can be taught about gays and gender identification as well as barring any form of sex education for students before the fifth grade.
“The language of the bill is overly broad and vague and could lead to serious consequences, including the very real possibility that it could be misinterpreted by schools and result in standing in the way of important child abuse prevention education in the early grades for at-risk and vulnerable children,” the governor said.
But Ducey said he supports the underlying intent of the legislation to guarantee “more parental involvement in education, especially around the very personal and sensitive topic of sex education.”
So rather than approve a new — and far-reaching — law, the governor is ordering the state Department of Education to come up with new procedures to ensure that parents have a “meaningful opportunity to participate, review and provide input on any proposed sex education course of study before it is adopted.”
In vetoing the bill, the governor killed more than what Sen. Nancy Barto, R-Phoenix, had proposed on parental involvement.
Barto’s original legislation also sought to spell out that parents would have to specially opt-in to any discussion of sexual orientation, gender identity or gender expression.
What made that significant and controversial is that language also would have covered any discussion of the sexual orientation of individuals in literature courses. And, absent parental consent, students would not have been able to be taught about the 1969 Stonewall Riot in New York City that led to the birth of the modern LGBTQ movement.
Similarly, Barto’s proposal would have required another special permission for any discussion about AIDS and the HIV virus that causes it, even when parents have signed permission slips for sex education.
The governor, in his veto message, made no mention of those provisions.
What did apparently get his concern was language that would have outlawed all forms of sex education before the fifth grade.
During legislative debate there were concerns that would preclude young children from learning about what is “bad touch” and how to protect themselves and report incidents. And that, foes of the bill said, could lead to more instances of child abuse.
Cathi Herrod, president of the Center for Arizona Policy, which backed the legislation, said that concern is misplaced.
“Abuse prevention is not sex education, and would not have been blocked by any provision in SB 1456,” she said. And Herrod criticized the governor’s office for not raising that issue before the measure was approved on a party-line vote by the Republican-controlled legislature.
Overall, she said the veto “sent a clear and deeply disappointing message to parents: The government knows better.”
But the governor, in vetoing the legislation, said there were important policy provisions in the bill that he wanted to preserve. So rather than sign the new law, he took it upon himself to implement them through his executive order.
Many of the provisions mirror what was in SB 1456.
For example, the rules he wants the Board of Education to adopt would require that the public be informed at least two weeks ahead of all meetings of any committee studying and selecting sex education courses, with those meetings open to the public.
His executive order also spells out that all proposed sex education courses are accessible for review and public comment for at least 60 days before any vote by the governing board. And during that 60-day period there would have to be at least two public hearings, with the additional ability to submit comments orally, in writing and electronically.
And once a sex ed course has been approved, the materials have to be available, both online and in person, for at least two weeks before instruction begins.
Herrod acknowledged the new requirements the governor is mandating but was clearly not impressed.
“An executive order is not the same as a duly enacted law,” she said. And Herrod said that the governor should have followed through with the rest of the measure and banned any form of sex education before the fifth grade.
“Parents have the fundamental right and responsibility to raise their children,” she said. “Exactly what they are taught regarding human sexuality, and when, is up to parents, not the government.”
Ducey said he is proud that Arizona is one of only a handful of states where sex education is an opt-in system, meaning students cannot participate absent a signed permission from a parent or legal guardian. Other states have an opt-out system, making sex-ed classes automatic unless a parent objects.
This isn’t the first time the governor has been skeptical of legislative changes to laws on how and when sex education can be taught.
Last year the governor was asked about legislation that would have outlawed these programs for students younger than the seventh grade. Ducey threw cold water on that idea, too.
“Whatever age we’re doing it right now seems to be working,” he said. And Ducey said that each parent has a responsibility and obligation to decide what is right for his or her child.
“I can only speak for myself on that,” Ducey said.
He also questioned the claim by proponents of a ban on early sex-ed classes that the public does not want them, suggesting that would have shown up.
“I think parents are pretty vocal when they’re not happy,” he said. “That’s what I’ve seen.”
While Ducey’s veto did not address the parts of the bill about sexual orientation, it is in some ways in line with a 2019 decision by the Arizona Legislature.
At that time, lawmakers repealed sections of sex-ed laws that prohibited teachers from promoting homosexuality as a positive lifestyle. That same law also said that if teachers talk about “safe sex” they cannot say there is any such possibility when it involves homosexual conduct.
But there’s a footnote on how and why lawmakers made that 2019 decision: It came only after Equality Arizona filed suit to challenge the law — and Attorney General Mark Brnovich saying he would not defend it in court.