The current debate to censor sex education in Kansas rests upon the incorrect assumption that what is obscene in public is likewise obscene in all other settings. The arguments reference “community standards,” a court ruling that not only recognized that the definition of obscenity varied from community to community, but that context does matter.
In 1964, the U.S. Supreme Court was faced with the case of Jacobellis vs. Ohio. and Justice Potter Stewart explained clearly why context mattered.
Justice Stewart wrote: “I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description [“hard-core pornography”], and perhaps I could never succeed in intelligibly doing so. But I know it when I see it....”
That statement—that there is no simple way to define obscenity but “I know it when I see it”—has become one of the most famous statements from our Supreme Court. For over 50 years, it has been an acknowledgment that laws must be realistic and the meaning of legislation must take into account the context.
Therefore, in Kansas Statute 21-6401, there is a checklist of what can constitute obscenity. But this longstanding Kansas statute likewise recognizes that what may be obscene in one setting may be quite appropriate and even required in another. It exempts from prosecution both medical practitioners and teachers when: “...an exhibition in a state of nudity is for a bona fide scientific or medical purpose, or for an educational or cultural purpose for a bona fide school, museum or library.”
Senate Bill 56 removes this exemption from prosecution (or “affirmative defense”) from teachers but not from medical workers. Graphic reproduction materials that a doctor uses with patients are clearly obscene if posted outside on the street, but are very appropriate and not obscene in the doctor’s office. This protection will remain for doctors but would no longer be allowed for teachers.
Removal of this clause will most definitely shut down sex education in Kansas. A teacher’s license is revoked for felony conviction. Use of the same sex education materials a doctor would use with a patient would become a potential crime for teachers under SB 56. Arguments that use for literature or science would be allowed ring hollow. That would be a courtroom argument, and teachers are not going to risk arrest in the first place.
Some folks fear that American society has become more promiscuous with higher divorce rates and other related ills. There may be many reasons for this, including the rise of the Internet, social media, and relatively unregulated cable television. But the minimal sex education provided in public schools is not part of the problem. There is not one bit of causative evidence that sex education contributes to immorality. But many studies show that sex education answers the right questions at the right time in students’ lives.
Ironically, this last week saw a case of a state legislator in Idaho who, during discussion of telemedicine, asked if it would not be possible to accomplish the standard ob/gyn pelvic exam remotely by having a patient swallow a camera. Yes. Really.
Now, we may tell little children that they may soon have a baby brother or sister because mommy has a baby in her “tummy.” But that error should hopefully be cleared up before students are 18 years old, and certainly before they become legislators.
Kansas legislators have not made the Idaho mistake. My guess is that they all know the difference between the digestive and reproductive systems. And where babies come from. And they all learned it before age 18. The next generation of legislators need to have that opportunity too.