OPINION: Alaska attorney general incorrectly interprets parental notification law

It is a fundamental premise of our constitution that the legislative branch sets policy by enacting laws and the executive branch must execute those laws without rewriting them. And when there is a dispute about the meaning of a statute, it is for the third branch of government, the courts, to decide.

Alaska Attorney General Treg Taylor recently stepped far outside his executive branch lane to issue “guidance” that reinterprets and greatly expands the parent notification statute, AS 14.03.016, far beyond that enacted by the Legislature in 2016, when I was attorney general. That statute requires school districts to pass policies that include parent notification at least two weeks before “content involving human reproduction or sexual matters is provided” to their child. According to Mr. Taylor, school districts must also give this notification for any content that touches upon gender identity, including when this topic comes up in English Literature or other non-human reproduction classes. Although human reproduction classes could touch upon gender identity issues, the inverse is not true — there are times when gender identity could be discussed outside of the context of human reproduction. Mr. Taylor is attempting to use fear tactics in the hope that school districts blackball all mention of gender identity from our schools, including banning certain books he does not like, as is evident from his pointing to the whistle-blower provisions in the statute.

As a lawyer who often litigates in court the meaning of statutes, I am confident that Mr. Taylor’s “guidance” is not a fair interpretation of this law. It is not supported by the plain language of the statute, and the legislative history confirms that the Legislature did not discuss or intend to include gender identity issues when addressed outside the context of human sexuality coursework. Because the Legislature recently refused to adopt a law reflecting his policy choice, Mr. Taylor is legislating from his executive branch seat — a violation of our constitution. I strongly advise school districts to seek their own legal advice on this issue and not defer to Mr. Taylor’s incorrect guidance.

Finally, the guidance is especially ironic because earlier this year, Mr. Taylor basically gave the opposite advice, narrowly interpreting “sex” to not include sexual orientation or gender identity. This was after the United States Supreme Court held that Title VII of the Civil Rights Act of 1964 prohibiting employment discrimination on the basis of “sex” protects those discriminated against on the basis of sexual orientation or gender identity. In interpreting Alaska’s discrimination laws using the same language, Mr. Taylor apparently reached the opposite conclusion and directed the Alaska State Commission on Human Rights to no longer take cases for people discriminated against on the basis of sexual orientation or gender identity, except in the Title VII employment context. This means that our attorney general believes it is legal to discriminate against people on the basis of sexual orientation or gender identity in a variety of contexts, including public accommodation, real estate, credit and financing and government practices. He now seeks to extend his policy beliefs to our schools.

Jahna Lindemuth served as Alaska’s attorney general from 2016 to 2018.

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