Texas has been on the forefront of limiting access to and the quality of sex education available to youth in schools for years. Marshaled by the state’s Republican majority, restrictions on sex ed adopted in recent years include: requiring an emphasis on abstinence from sex, requiring that parents “opt-in” their children to sex ed curriculum, and exclusion of lessons on sexual orientation or gender identity.
But a slate of nearly identical bills filed by multiple Republican lawmakers in both chambers of the Legislature indicate that Texas is preparing to take another step toward limiting sex ed – a step that youth advocacy organizations say represents a novel approach to the nationwide right-wing anti-sex-ed project.
Rather than target sex-ed curriculum directly, the bills in question amend the Texas Penal Code in a way that could make teachers (and doctors and psychologists) more vulnerable to criminal prosecution under laws against public indecency and the “sale, distribution, or display of harmful material to minors.”
Currently, laws that restrict the “distribution” of “harmful material to minors” carve out a sort of exception for sex education materials provided by teachers and doctors. The way that exception works is through an “affirmative defense,” which criminal defense attorney Allen Place Jr. describes as a powerful tool available to defendants accused of a crime. Affirmative defense is evidence that, if found credible by a jury, negates the defendant’s criminal liability for the offense – even if the jury finds they committed the underlying act. (A popular example is self-defense in homicide cases: If evidence shows both that the defendant killed someone and that they were defending themselves, the killing does not constitute a criminal act.)
These new bills filed by GOP lawmakers (House Bill 267, HB 947, HB 995, HB 1434, HB 2030, Senate Bill 89, SB 242, and SB 412) amend the state’s public indecency and harmful material laws to remove affirmative defense against public indecency for “bona fide … educational, medical, psychological, [or] psychiatric” purpose. The bills would continue to allow law enforcement, legislative, and judicial defendants to assert affirmative defense. “No question this is a narrowing of affirmative defense,” said Place, who serves as head legislative counsel for the Texas Criminal Defense Lawyers Association.
If one of the bills makes it to Gov. Greg Abbott’s desk and is signed into law, the chances of an Austin-area teacher facing criminal prosecution for showing students material that could be considered “harmful” will remain low. One of Travis County’s prosecutors – District Attorney José Garza or County Attorney Delia Garza – would have to pursue charges. The prospect of either doing that would likely go against the progressive values they campaigned on.
Still, advocates for comprehensive sex education in schools say that such bills can have a chilling effect on educators – whether or not any of them even become law. Miranda Estes, state policy and action manager with Sexuality Information and Education Council of the United States, says bills attempting to restrict what teachers can teach often cause fear and confusion. That can motivate teachers to avoid teaching certain materials so that they steer clear of potential violation of law.
“If a teacher isn’t sure if the materials they want to show would run afoul of the law, they may just outright avoid the material,” Estes said. “Whether or not the bill becomes law, it is still deeply concerning.”
Estes pointed to Florida, where Gov. Ron DeSantis signed the state’s “Don’t Say Gay” bill into law in 2022. Though the law – which explicitly prohibited Florida schools from teaching about gender identity and sexual orientation – was immediately litigated, it still chilled educators, Estes said. In some cases, Estes said, “teachers outed students because that’s what they thought the law required.” (In this case, a settlement reached in 2024 now allows teachers to teach the concepts so long as they are not part of “formal” lessons.)
Estes has advice for teachers in Austin, where school district leaders have supported a more progressive, comprehensive approach to sex ed. “Please don’t obey a law like this in advance,” Estes said. “[Austin teachers] are trailblazing for the state and bills like this are intended to confuse and scare.”
This article appears in February 14 • 2025.