The federal government spends over $170 million annually to subsidize states and community organizations that provide abstinence-only sex education (1) to America's youth. (2) This type of sex education (3) is limited to teaching that a monogamous, marital, heterosexual relationship is the "expected standard of human activity" (4) and that sex outside such a relationship will be physically and psychologically harmful. (5) Abstinence-only education also advocates only one method to prevent disease and pregnancy, abstinence, and it offers no information concerning contraception and disease prevention except that all methods other than abstinence fail. (6) As a result of its singular focus, the curricula not only pose significant problems with respect to ensuring minors' sexual health, but also ignore the needs of sexual minority youth altogether. (7)
The debate regarding what to teach minors about sex is a political battle over defining American values. While the nation engages in this debate, however, America's youth are paying the price. (8) Comprehensive reviews of abstinence-only curricula have consistently noted that they contain false or misleading public health information. (9) Recently, United States Representative Henry A. Waxman released a report ("Waxman Report") evaluating "the content of the most popular abstinence-only curricula used by grantees of the largest federal abstinence initiative." (10) concluded that over eighty percent of federal grants go to providing abstinence-only curricula that "contain false, misleading, or distorted information about reproductive health," (11) including exaggerations about contraceptive failure rates, (12) the physical and mental health risks of abortion, (13) and the health susceptibilities of the gay population. (14)
Aside from the dangers that such curricula pose for teenagers, this type of sex education fails in that it is not what a majority of Americans want. A recent poll by National Public Radio, the Kaiser Family Foundation, and Harvard University's John F. Kennedy School of Government found that more than seventy-five percent of Americans believe it is appropriate to provide young people with a broad curriculum that includes reliable information regarding contraception and protection from sexually transmitted diseases (STDs). (15)
More important than the desires of the general public, however, are the needs of the students to whom the curricula are taught. Indeed, adolescents are the primary stakeholders in the debate concerning sex education, yet their needs and interests are not driving federal policy. Adolescents need a voice in the sex education debate based on their legal rights. The law has recognized that mature minors enjoy certain fundamental rights in matters of their own sexuality that need not yield to lesser state and parental interests. Moreover, state laws generally allow mature minors to make their own choices regarding, among other things, contraception, prenatal care, treatment of STDs, and adoption. The autonomy and privacy rights accorded to minors concerning their own sexuality entitles them to a corresponding fight to the truthful, accurate, and complete information necessary to make wise choices.
However, a distinction must be drawn between the state's interest in inculcating the value of abstinence, and the state's misguided and unethical interest in disseminating false, incomplete, and misleading sexual health information to young people for the purposes of emphasizing that value, as it is only the latter that is indefensible. This second course may be taken because proponents of abstinence-only sex education worry that comprehensive education dilutes the abstinence message. However, there is no evidence that providing comprehensive sex information to minors increases the propensity to engage in sex prematurely or reduces the impact of the abstinence message. (16) On the contrary, comprehensive sex education empowers minors to act responsibly and in their best self-interest. In the words of the American Academy of Pediatrics Committee on Adolescence, "encouraging abstinence and urging better use of contraception are compatible goals." (17)
Abstinence-only sex education is anything but educational. At best, it deprives students of the knowledge necessary to manage their own sexual health. At worst, it is dangerous to minors and to the public health. As the Waxman Report concluded, "[s]erious and pervasive problems with the accuracy of abstinence-only curricula may help explain why these programs have not been shown to protect adolescents from sexually transmitted diseases and why youth who pledge abstinence are significantly less likely to make informed choices about precautions when they do have sex." (18) In a society that purports to value children, the state should foster healthy, informed minors who are equipped to manage their sexual health responsibly. At the very least, the state should not encourage or support educators and programs in misleading children and promoting false, dangerous, and potentially injurious practices.
This Article does not take exception to the federal government's authority to use its resources to inculcate the value of abstinence among adolescents, despite the fact that expecting abstinence to persist until marriage is likely an unrealistic objective. (19) Instead, this Article questions the practice of providing federal funding for unproven programs that do not adequately serve either the needs of minors or the health interests of the public. The federal government may have a legitimate interest in advancing certain social values; however, there can be no legitimate interest in funding invalid and foolhardy programs that harm the nation's youth. This Article argues that sexually mature minors are entitled to accurate and complete information about sex, and that, once the state has affirmatively undertaken to fund or provide sex education, (20) it has an obligation to ensure that the curricula it supports are complete and accurate.
Part I of this Article first discusses the sexual development and health of young people, and then turns to the risks and consequences of unprotected sexual activity. Part II continues by examining current federal policy of exclusively funding abstinence-only-until-marriage education, as well as its growing influence. Part III compares abstinence-only-until-marriage and comprehensive sex education, highlighting the shortcomings of the former. Part IV goes on to challenge the legitimacy of the state's interest in supporting abstinence-only sex education when balanced against the minor's rights and interests, concluding that adolescents' rights compel a comprehensive sex education policy.
THE SEXUAL NATURE OF AMERICAN TEENS
In the following sections, this Article explores several intersecting issues. Puberty, the process of sexual maturation, typically begins at about age eight, nine, or ten, and is usually completed before individuals leave their teens. Nevertheless, American teenagers are encouraged to forego sexual activity, postpone marriage, and spend time preparing for adult careers. Although abstinence during these adolescent years may be regarded in adult society as socially desirable, many minors engage in a variety of sexual activities that expose them to preventable health risks, including unintended pregnancy and the transmission of HIV and other STDs. How best to protect their sexual health while still encouraging sexual restraint has long been a contentious debate in America.
From Puberty to Adolescence as a Developmental Stage of Life
Prior to discussing sex education, and its applicability to the current sexual practices of American teenagers, it is useful to note the conceptual differences between puberty and adolescence, as this underscores the issues concerning sexual development and education. Puberty is a biological process of sexual maturation, while adolescence is a stage of life recognized in Western societies, which spans from childhood to adulthood. It lasts longer than puberty, and does not end at sexual maturation. During adolescence, although minors may be sexually mature and physically capable of sexual relations, American society prefers not to recognize their sexuality or condone their sexual conduct.
Puberty is an extended process that takes, on average, 4.5 years to complete, (21) and is remarkably transformative in both males and females. In the period of a few years, a child's body undergoes dramatic internal and external physical changes and develops adult sexual function and fertility. (22) Puberty also marks a period of profound psychological and psychosocial change. (23) Although variable, (24) girls in the United States today experience the onset of puberty at nine or ten years and the average age of menstruation at twelve years. (25) "Between the mid-19th and the mid-20th century, the average menarcheal age decreased remarkably from 17 to under 14 y[ears] in [the] United States...." (26) Boys begin pubertal development around 11.5 years, (27) with "[s]perm production coincid[ing] with testicular and penile growth, generally occurring at age of 13.5-14 years." (28) Sometime during puberty, perhaps one to three years after spermarche, the first appearance of sperm, the typical boy becomes reproductively capable. Less is known of historical trends concerning the timing of male puberty, and thus it is difficult to say whether there has been any downward shift in the age at which puberty begins in boys. (29)
While puberty is a universal biological process, the recognition of adolescence as a developmental stage of life is a relatively modern phenomenon. Historically, there was no prolonged identifiable developmental period between childhood and adulthood, and among many non-Western cultures, there still is none. (30) This period evolved in Western societies as a consequence their industrialization over the past one...