* This blog was co-authored by Angela Griffin, 3L at Loyola Law (2021 NHeLP legal intern)
LGBTQ+ young people need access to comprehensive and inclusive sex education free from discrimination and stigma, yet they face immense barriers. Access can help fight the reproductive injustice, sexual health, and broader health inequities; stigma and bias; and discrimination and bullying from adults and peers, which LGBTQ+ youth face at disproportionate rates compared to cisgender and heterosexual peers. Ample evidence illustrates that comprehensive and inclusive sex education helps prevent negative outcomes in physical and behavioral health and wellbeing. It also supports young people in making healthy, lifelong decisions about their sexual and reproductive health. It increases contraception use and helps to prevent unplanned pregnancies. It also reduces and prevents high-risk sexual behaviors and STIs. Unfortunately, many schools and health care providers do not provide comprehensive and inclusive sex education to young people, including LGBTQ+ youth, fueling stark gender inequities in health and wellbeing. This blog post explores potential policy solutions.
Comprehensive Sex Education in Schools
Only twenty-nine states and D.C. require sex education. Fifteen states do not require the content of sex education to be evidence-informed, medically accurate and complete, age and developmentally appropriate, or culturally responsive when taught. Twenty-eight states require that sex education prioritize abstinence when provided—curricula that can create hostile environments for and undermine the health and wellbeing of LGBTQ+ students. Only fifteen states and D.C. require sex education programs to discuss sexual orientation or gender identity. Only ten states and D.C. require an inclusive view of sexual orientation. In addition, many sex education programs are not accessible or do not meet the needs of LGBTQ+, Black, Indigenous or other people of color. And relatedly, a mere 20 states and D.C. explicitly prohibit bullying on the basis of sexual orientation and gender identification. It is no wonder that many schools, especially those without inclusive and comprehensive sex education, are unsafe environments for LGBTQ+ youth.
As state health, reproductive justice, and education advocates continue to fight for legislation requiring that schools provide comprehensive sex education, Congress can help address injustices faced by LGBTQ+ youth by passing the Real Education and Access for Healthy Youth Act (REAHYA). REAHYA would help address these inequities by providing the first federal grants for comprehensive sex education programs and ending investments in discriminatory Title V abstinence-only programs. The bill requires that grantees offer sex education that is inclusive of youth with varying gender identities, gender expressions, and sexual orientations.
Medicaid and CHIP Coverage of Sex Education in Health Care Delivery
Health care providers can provide confidential sexual health education during visits with patients. Health education is an important and necessary component of medical screening in Medicaid’s comprehensive Early and Periodic Screening, Diagnostic and Treatment (EPSDT) benefit for eligible children and youth through age 21. The American Academy of Pediatrics recommends that physicians utilize age-appropriate, confidential, culturally sensitive, and nonjudgmental sex education guidelines for patients from infancy until 21 years old. As NHeLP previously discussed in an issue brief, CMS can encourage the proliferation of LGBTQ+-inclusive sexual health education as a part of EPSDT medical screenings by requiring states to use standardized screenings on EPSDT medical screens, including health education; conducting relevant quality monitoring and reporting; developing relevant quality measures, and encouraging states to monitor the delivery of health education. States can do the same.
Leveraging Medicaid and CHIP to Finance Comprehensive Sex Ed at School-Based Health Care Visits
School nurses are positioned to promote healthier, more equitable futures for LGBTQ+ youth by strengthening access to a robust system of care, including sexual health education, exactly where they spend the majority of their time. At schools where school nurses are available, EPSDT can supplement comprehensive sex education by funding sexual education provided during school-based health care visits.
Until recently, CMS maintained in administrative guidance that Medicaid payment was generally unavailable for otherwise covered health services if the services were provided free of charge to the community at large. Under this “free care rule,” school districts interested in funding sex education for students could either finance programs using non-Medicaid funds, provide services only to students who were Medicaid beneficiaries, or pursue reimbursement from every non-Medicaid eligible student’s family or health insurer. These policy options were often too financially or ethically untenable or unwieldy to implement. In 2004 and 2005, the U.S. Department of Health and Human Services Departmental Appeals Board heard challenges to the free care rule and concluded that it was not a permissible interpretation of federal laws or regulations. In 2014, CMS issued a State Medicaid Director letter rescinding the rule and stating that federal Medicaid reimbursement is available for covered services provided to beneficiaries, regardless of whether there is any service charge to the beneficiary or the community at large, as long as all other Medicaid requirements are met. As such, EPSDT can reimburse schools for sexual health education provided pursuant to school-based health care visits. Schools without adequate funding to staff school nurses can collaborate with community health centers to provide sex education to Medicaid- and CHIP-eligible young people.
Comprehensive and inclusive sex education can promote health equity for and save the lives of LGBTQ+ young people. States should require schools to provide comprehensive sex education to help promote LGBTQ+ health equity and prevent LGBTQ+ student discrimination and harassment. REAHYA could help support comprehensive sex education at high schools, colleges, and broader organizations to support sexual health, reproductive justice, and broader wellbeing for LGBTQ+ young people. In addition, State Medicaid and CHIP programs should build on the vital foundation provided by classroom-based sex education by encouraging school-based providers to deliver sex education to Medicaid- and CHIP-eligible young people at student health care visits.