University of Pennsylvania Journal of Law and Social Change


Haley Ferise

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The United States funds abstinence-only sex education through a variety of spending programs, such as the Title V Sexual Risk Avoidance Education (SRAE) program. Receiving abstinence-only sex education is correlated with higher teen pregnancy rates, more frequent instances of sexually transmitted diseases and infections among young people, young people’s engagement in sexual activity with a greater number of partners, and even a reduced average age of engagement in vaginal intercourse. Federal funding of programs which carry these risks must cease immediately. Scholars and litigants have raised challenges to the constitutionality of programs like SRAE; legal scholar James McGrath purports that such programs are a violation of the Establishment Clause, and as a student author, Peggy Rowe argues they are a violation of substantive due process.

This article introduces a new constitutional challenge and a new statutory challenge: Funding for SRAE and programs like it is unconstitutional under the Equal Protection Clause and illegal under Title IX of the Educational Amendments Act of 1972 because it is discrimination on the basis of sex. This paper analyzes how the funding of abstinence-only sex education amounts to the disparate treatment of and discrimination against girls. An understanding of this funding’s violations of the Equal Protection Clause and Title IX contributes to a larger conversation on sex education reform and constitutional challenges to SRAE and programs like it. There are many moving parts in this research and movement: SRAE funding is unconstitutional through violations of the Establishment Clause and substantive due process. Such funding also denies equal protection to LGBT youth. The policy does not reflect the national majority view of parents and voters. Moreover, sex education is but a piece of the culture wars regarding reproductive and sexual health policy in the United States—which affect everyone, including the most vulnerable and easily neglected. Within this broader picture, this article seeks to advance the interests of girls who receive federally funded sex education.