The history of LGBTQ+ rights in the United States can be seen as cyclical, as “just a little bit of History repeating.” Progress is made, then those who oppose this change—whether based on political opportunism, fundamentalist interpretation of religious scripture, simple bigotry or, most often, a miasma of of these—will react in a backlash that seeks not only to roll back recent gains, but to actively return to an idealized (and fantastical) state of invisibility for these communities.

As of April 2022, there have been 325 bills introduced to US state legislatures, 130 of which have been specifically anti-transgender in scope. For comparison, 2021 had 268 such bills, with 27 of them enacted into law, the worst year for anti-LGBT legislation since 2015, the year of the Obergefell vs. Hodges same-sex marriage decision by the US Supreme Court. Most recently, federal “Don’t Say Gay” legislation was introduced by thirty-two Congressional members, a bill that “would affect all federally funded facilities and programs, which would include public libraries, federally funded schools, military bases and hospitals.”

The roots of the current wave of legislation—that children must be protected from LGBTQ+ issues, and people, that are in no way “sexually oriented,” coupled with persistent myths of “recruitment”—reach back almost fifty years. In 1977, Dade County, Florida, passed an anti-discrimination ordinance covering housing, employment and public accommodation. Anita Bryant, then a spokesperson for the Florida Citrus Commission, founded the organization Save Our Children, with the intention of leading the repeal effort. It was overwhelmingly successful, and Bryant began to advocate nationally against lesbian and gay rights.

The next year John Briggs, a California businessman and member of the state legislature, introduced what would be known as Proposition 6, or the Briggs Initiative: the first attempt to restrict the rights of lesbian and gay Americans by popular referendum. If passed, teachers who were found to have taken part in “public homosexual activity” or “public homosexual conduct” would be fired, where “public homosexual conduct” was defined as:

“the advocating, soliciting, imposing, encouraging or promoting of private or public homosexual activity directed at, or likely to come to the attention of schoolchildren and/or other employees.”

The Briggs Initiative galvanized the California LGBTQ+ community, as well as state and national political figures. Harvey Milk, elected to the San Francisco Board of Supervisors the previous year, was arguably the most vocal and visible opponent of Proposition 6. More surprisingly, Ronald Reagan (then Governor of California) came out against it, as did both former US President Gerald Ford and current President Jimmy Carter. Anita Bryant made frequent appearances in support of Proposition 6 as part of the Save Our Children coalition.

The referendum failed by a vote of 58.4% to 41.6%. Readers will find the text of the initiative below, annotated with scholarship around the fights for (and against) LGBT rights, and the forces that continue to be active. As always, these articles are free to read and use.

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Text of Proposition 6, California (on ballot November 7, 1978)

SECTION 1. Section 44837.5 is added to the Education Code, to read:

44837.5 One of the most fundamental interest of the State is the establishment and the preservation of the family unit. Consistent with this interest is the State’s duty to protect its impressionable youth from influences which are antithetical to this vital interest. This duty is particularly compelling when the state undertakes to educate its youth, and by law, requires them to be exposed to the state’s chosen educational environment throughout their formative years.

A schoolteacher, teacher’s aide, school administrator or counselor has a professional duty directed exclusively towards the moral as well as intellectual, social and civic development of young and impressionable students.

As a result of continued close and prolonged contact with schoolchildren, a teacher, teacher’s aide, school administrator or counselor becomes a role model whose words, behavior and actions are likely to be emulated by students coming under his or her care, instruction, supervision, administration, guidance and protection.

For these reasons the state finds a compelling interest in refusing to employ and in terminating the employment of a schoolteacher, teacher’s aide, school administrator or counselor, subject to reasonable restrictions and qualifications, who engages in public homosexual activity and/or public homosexual conduct directed at, or likely to come to the attention of, schoolchildren or other school employees.

This proscription is essential since such activity and conduct undermines the state’s interest in preserving and perpetuating the conjugal family unit.

The purposes of sections 44837.6 and 44933.5 is to proscribe employment of a person whose homosexual activities or conduct are determined to render him or her unfit for service.

SECTION 2. Section 44837.6 is added to the Education Code, to read:

44837.6 (a) The governing board of a school district shall refuse to hire as an employee any person who has engaged in public homosexual activity or public homosexual conduct should the board determine that said activity or conduct renders the person unfit for service.

(b) For the purposes of this section, (1) “public homosexual activity” means the commission of an act defined in subdivision (a) of 286 of the Penal Code, or in subdivision (a) of section 288a of the Penal Code, upon any other person of the same sex, which is not discreet and not practiced in private, whether or not such act, at the time of its commission, constituted a crime;

(2) “public homosexual conduct” means the advocating, soliciting, imposing, encouraging or promoting of private or public homosexual activity directed at, or likely to come to the attention of schoolchildren and/or other employees; and

(3) “Employee” means a probationary or permanent certificated teacher, teacher’s aide, school administrator or counselor.

(c) In evaluating the public homosexual activity and/or the public homosexual conduct in question for the purposes of determining an applicant’s unfitness for service as an employee, a board shall consider the factors delineated in Section 44933.5 (f).

SECTION 3. Section 44933.5 is added to the Education Code, to read:

44933.5 (a) In addition to the grounds specified in Sections 44932, 44948 and 44949, or any other provision of law, the commission of “public homosexual activity” or “public homosexual conduct” by an employee shall subject the employee to dismissal upon determination by the board that said activity or conduct renders the employee unfit for service. Dismissal shall be determined in accordance with the procedures contained in this section.

(b) For the purposes of this section (1) “public homosexual activity” means the commission of an act defined in subdivision (a) of 286 of the Penal Code, or in subdivision (a) of section 288a of the Penal Code, upon any other person of the same sex, which is not discreet and not practiced in private, whether or not such act, at the time of its commission, constituted a crime;

(2) “public homosexual conduct” means the advocating, soliciting, imposing, encouraging or promoting of private or public homosexual activity directed at, or likely to come to the attention of schoolchildren and/or other employees; and

(3) “Employee” means a probationary or permanent certificated teacher, teacher’s aide, school administrator or counselor.

(c) Notwithstanding any other provision of law regarding dismissal procedures, the governing board, upon the filing of written charges that the person has committed public homosexual activity or public homosexual conduct, duly signed and verified by the person filing the charges, or upon written charges formulated by the governing board, shall set a probable cause hearing on the charges within fifteen (15) working days after the filing or formulation of written charges and forward notice to the employee of the charges not less than ten (10) working days prior to the probable cause hearing. The notice shall inform the employee of the time and place of the governing board’s hearing to determine if probable cause exists that the employee has engaged in public homosexual activity or public homosexual conduct. Such notice shall also inform the employee of his or her right to be present with counsel and to present evidence which may have bearing on the board’s determination of whether there is probable cause. The hearing shall be held in private session in accordance with Govt. Code §54957, unless the employee requests a public hearing. A finding of probable cause shall be made within thirty (30) working days after the filing or formulation of written charges by not less than a simple majority vote of the entire board.

(d) Upon a finding of probable cause, the governing board may, if it deems such action necessary, immediately suspend the employee from his or her duties. The board shall, within thirty-two (32) working days after the filing or formulation of written charges, notify the employee in writing of its findings and decision to suspend, if imposed, and the board’s reasons therefor.

(e) Whether or not the employee is immediately suspended, and notwithstanding any other provision of law, the governing board shall, within thirty (30) working days after the notice of the finding of probable cause, hold a hearing on truth of the charges upon which a finding of probable cause was based and whether such charges, if found to be true, render the employee unfit for service. This hearing shall be held in private session in accordance with Govt. Code §54597, unless the employee requests a public hearing. The governing board’s decision as to whether the employee is unfit for service shall be made within thirty (30) working days after the conclusion of this hearing. A decision that the employee is unfit for service shall be determined by not less than a simple majority vote of the entire board. The written decision shall include findings of fact and conclusions of law.

(f) Factors to be considered by the board in evaluating the charges of public homosexual activity or public homosexual conduct in question and in determining unfitness for service shall include, but not be limited to (1) the likelihood that the activity or conduct may adversely affect students or other employees; (2) the proximity or remoteness in time or location of the conduct to the employee’s responsibilities; (3) the extenuating or aggravating circumstances which, in the judgement of the board, must be examined in weighing the evidence; and (4) whether the conduct included acts, words or deeds, of a continuing or comprehensive nature which would tend to encourage, promote, or dispose schoolchildren toward private or public homosexual activity or private or public homosexual conduct.

(g) If, by a preponderance of the evidence, the employee is found to have engaged in public homosexual activity or public homosexual conduct which renders the employee unfit for service, the employee shall be dismissed from employment. The decision of the governing board shall be subject to judicial review.

SECTION 4. Severability Clause

If any provision of this enactment or the application thereof to any person or circumstances is held invalid, such invalidity shall not affect other provisions or application of the enactment which can be given effect without the invalid provision of application, and to this end the provisions of this enactment are severable.

[Text of Initiative: School Employees—Homosexuality California Initiative 160 (1977)]

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