Does Abstinence-Only Education Violate Title IX?

A new study in the Archives of Pediatric Adolescent Medicine reveals that a majority of Americans favor comprehensive sex education over abstinence-only curricula:

Approximately 82% of respondents indicated support for programs that teach students about both abstinence and other methods of preventing pregnancy and sexually transmitted diseases. Similarly, 68.5% supported teaching how to properly use condoms. Abstinence-only education programs, in contrast, received the lowest levels of support (36%) and the highest level of opposition (about 50%) across the 3 program options. Self-identified conservative, liberal, and moderate respondents all supported abstinence-plus programs, although the extent of support varied significantly.

Perhaps this trend in public opinion will cause Congress to rethink its appropriations for abstinence-only education. Under federal legislation, states and schools are eligible for certain grants on condition that they agree to teach a government-approved abstinence-based curricula, as well as refrain from teaching anything inconsistent with abstinence (thus, abstinence only). See 42 U.S.C. 710, 42 U.S.C. 300z, Pub. L. No. 106-246. In the meantime, I will continue to wonder whether abstinence-only education is on a collision course with Title IX.

As a majority of Americans apparently now realize, abstinence-only education is unrealistic--and thus, ineffective--prevention of unwanted pregnancy, a condition that disproportionately impacts female students. Moreover, as the independent Sexuality Information and Education Council reported as recently as last month, popular abstinence-only curricula--with such clever titles as WAIT (Why Am I Tempted?)--rely on harmful gender stereotypes about men and women (such as "men are like microwaves and women are like crock pots") that "overtly reinforces a societal double-standard that suggests that men want casual sex from any and all women and that women do not desire sex" which "places all responsibility for refusing sexual activity on the shoulders of young women." (See also, Why kNOw, warning that "The young girl learning to understand her changing body often has no idea the effect it has on surrounding males. Signals she doesn't even know she is sending can cause big problems.”)

So abstinence-only education programs discriminate against female students in two ways: by increasing their risk of unwanted pregnancy and by subjecting all students to harmful gender stereotypes that impose a double standard requiring girls to bear the brunt of virtue. Since all of this is going on in federally funded schools, why doesn't it violate Title IX? Or does it? I think one possible reason that it does not is a very unsatisfactory application of statutory construction. Congress can't pass a statute that violates another statute. A court will most likely interpret the latter statute, to the extent it is inconsistent with the former, as an amendment or exception to the earlier statute. So even if abstinence-only education did in fact constitute sex discrimination that would violate Title IX, by authorizing it in a later federal statute, Congress may have implicitly carved out it as an exception to Title IX.

On the other hand, there is a way that a court could read both statutes as capable of coexisting, rather than the latter as an amendment to the former. Maybe Congress meant for federal funding recipients to choose which conditional funding to accept. A school can take the general funds conditioned on Title IX compliance, in which case, they are ineligible for the abstinence-conditioned funds. Conversely, if they take abstinence-conditioned funds, they are ineligible for the general money conditioned on Title IX compliance. One or the other, but not both.

There may be additional arguments for or against a Title IX application to abstinence-only education. This is by no means an exhaustive analysis, only a first, question-raising step.