analytical and persuasive paper

Sexuality Education and International Standards: Insisting Upon Children's Rights

Aoife Daly, Catherine O' Sullivan

Human Rights Quarterly, Volume 42, Number 4, November 2020, pp. 835-858 (Article)

Published by Johns Hopkins University Press DOI:

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https://doi.org/10.1353/hrq.2020.0043

https://muse.jhu.edu/article/773446

HUMAN RIGHTS QUARTERLY

Human Rights Quarterly 42 (2020) 835–858 © 2020 by Johns Hopkins University Press

Sexuality Education and International Standards: Insisting Upon Children’s Rights

Aoife Daly & Catherine O’ Sullivan

ABSTRACT

The #MeToo movement has exposed the need for education about consent, power dynamics and positive relationships. International human rights instruments oblige states to provide sexuality education, and there have been some legal challenges to state provision of such education. Courts at regional and domestic levels have focused on the benefits to the state of sexuality education, holding it permissible if it is “objective” and if parents may educate privately to avoid it. It is argued in this article however that

Aoife Daly is Reader in Law at the School of Law of the University of Liverpool, and Deputy Director of the European Children’s Rights Unit which aims to progress children’s rights through research. She writes and teaches on human rights from interdisciplinary perspectives, drawing for example on feminist theory and psychology. In 2018 she published Children, Autonomy and the Courts: Beyond the Right to be Heard with Brill/Nijhoff, arguing that courts should support and prioritise children’s own wishes to the extent possible when making decisions about them. In 2018 she also led a team advising the UK Equality and Human Rights Commission on good practice examples for making rights a reality in the UK. She is a fellow of the Independent Social Research Foundation 2019-2020, which has funded her to conduct interdisciplinary research into how a greater evidence base can inform how the law treats children’s decision-making.

Catherine O’Sullivan is a lecturer at the School of Law in University College Cork, Ireland, and teaches and researches in the areas of criminal law, criminology, gender and the law, and law and popular culture. She was a founding member of the Centre for Criminal Justice and Human Rights, established in 2006, and served as Co-Director from November 2010-February 2013. She is also a founding member of the Centre for Children’s Rights and Family Law, established in 2018, and her current research on the intersection of criminal law and children’s rights has developed thanks to input from colleagues and others at the first Workshop on Frontier Research in Children’s Rights and Family Law in 2018 and as part of the UCC Law Colloquium series. Research and collaboration for this article has been facilitated with funding provided by the School of Law and Social Justice at the University of Liverpool, including Catherine’s International Visiting Research Fellowship Award during which she visited the School in 2019.

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greater focus is required on sexuality education as primarily a child’s human right, independent of state discretion and/or parental rights.

I. INTRODUCTION

It has been stated by numerous international human rights bodies that the UN Convention on the Rights of the Child (CRC) and other instruments include a right to sexuality education. Yet international research also tells us that the provision of comprehensive sexuality education is not the norm. The primary reason for this appears to be the notion—perceived or real— that parents will oppose it, and that it is the “right” of parents to withhold this education from their children if they see fit. Various jurisdictions have experienced legal challenges to their provision of sexuality education in public schools by conservative/religious parents (and organizations) on the basis that it interfered with parental educational rights. These challenges have largely been unsuccessful and the state’s legitimate interest in providing sexuality education has been confirmed. Courts have focused on the public health benefits of sexuality education, and the importance of insisting upon non-discrimination approaches to lesbian, gay, bisexual, transsexual, queer, questioning and intersex (LGBTQQI) families and persons.

Positive though these judgments have been, they also constitute a missed opportunity from the perspective of promoting children’s rights. In particular, courts have held that parents can educate children outside of the state system if they do not wish for them to receive sexuality education. This demonstrates a perception that sexuality education should only be delivered if parents acquiesce to it and fails to recognize that this will inevitably leave some children uneducated about issues relating to sexual health and consent. They will therefore be left unprotected themselves and/or potentially posing a risk to others where consent is not understood.

The #MeToo movement, which spread virally in October 2017 as a hashtag on social media, highlighted the shocking scale of sexual assault and harassment. Its effect has been to draw attention to power dynamics and the impact that these dynamics may have on the behavior of those in dominant and authoritative positions in the workplace. It has inspired conversations about consent, about what sex is coercive1 and about the “complicated ambivalences in which sexual harassment . . . [is] embedded.”2 In this new era, conversations about what behavior is appropriate and legal and what is not, are more prevalent than ever.

1. Ashwini T’Ambe, Reckoning with the Silences of #MeToo, 44 Feminist stud. 197, 201 (2018).

2. See Editorial, Ambiguities and Dilemmas Around #MeToo: #ForHowLong and #WhereTo, 25 eur. J. Women’s stud. 3 (2018).

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Children and young people are often defined by their vulnerability,3 yet factors such as information, education and support will make a differ- ence to how vulnerable one actually is. Equipping children with knowledge around sexuality and relationships leaves them more capable of making positive choices and therefore less vulnerable to exploitation and abuse.4 As exposed by movements such as #MeToo, there are high rates of sexual violence, particularly against girls and women. One of the reasons for this is the unequal power dynamics that exist when children and young people lack knowledge about sex, consent and about what constitutes a respectful relationship.

It will be argued in this article that sexuality education, like education generally, is and should be primarily understood as a right of the child, not of the parent or state. Sexuality education aims to assist children and young people to make healthy and respectful choices about sexual health and rela- tionships.5 Their ability to make these choices should not be dependent on the personal views or beliefs of parents. Nor should it be dependent on the willingness of the state to provide it. States have international human rights law obligations in the CRC (the most ratified UN human rights treaty) and elsewhere to provide sexuality education. This must be better recognized by both petitioners and courts at regional and national level.

In Part II of this article, the aims and benefits of sexuality education are considered. The conceptualization of such education as a child’s right is outlined in Part III. Part IV will consider and critique case law of the Euro- pean Court of Human Rights and other courts. Part V will advocate for the pro-active framing of sexuality education as a child’s right in future litigation.

II. THE AIMS AND BENEFITS OF COMPREHENSIVE SEXUALITY EDUCATION

A. The Nature of Sexuality Education

Comprehensive sexuality education is defined by the United Nations Educa- tional Scientific and Cultural Organisation (UNESCO) as an “age appropri-

3. Jonathan Herring, Vulnerability, Children, and the law, in LaW and ChiLdhood studies: Current LegaL issues VoL. 14, at 243 (Michael Freeman ed., 2012).

4. Aoife Daly, Rachel Heah & Kirsty Liddiard, Vulnerable Subjects or Autonomous Actors: The Right to Sexuality Education For Under-18s With Disabilities, 9 gLobaL stud. ChiLd- hood. 235 (2019).

5. European Expert Group on Sexuality Education, Sexuality Education—What is it?, 16 sex ed. 427 (2016). The Expert Group emphasizes that it does not encourage children and young people to have sex. The term sexuality education will be used in this article to denote this comprehensive approach. The narrower term “sex education” will be used where the term is used in a particular case.

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ate, culturally relevant approach to teaching about sex and relationships by providing scientifically accurate, realistic, non-judgmental information.”6 It provides the opportunity to explore values and attitudes to sex and relation- ships and to build decision-making and communication skills.7 The Euro- pean Expert Group on Sexuality Education also emphasizes that an aim of sexuality education should be to enhance the ability of children and young people to make healthy choices around relationships and sexuality.8 Sexual- ity education therefore encompasses several components.9 The first is sex, with a focus on biological characteristics. The next is relationships, where the focus is on sexual/romantic relationships and interactions. Finally, sexual health involves a focus on health outcomes and issues relating to sexuality.10 Sexuality education therefore extends beyond the bare technicalities of sex. It must encompass “attitudes, feelings, rights, and responsibilities” as well as consideration of how people “[understand] themselves as sexual beings in societies that hold particular views about how and when sex should happen, between whom, and at what stage of one’s life.”11

Sexuality education can of course be gained from many arenas, but as this article is concerned with state obligations, we center on the provision of such education through school. Children and young people themselves express that they want to have sexuality education provided to them through school.12 Although parents can have an enormous role to play in children’s sexuality education, many parents do not talk to their children about sex, and in any case many children indicate that they feel awkward about such conversations and instead seek such information elsewhere.13 In the face of inadequate or non-existent sexuality education through schools, they are left to seek information about sex via the (obviously less reliable) avenues of peers, online sources, or pornography.14

There is no doubt that the benefits of state provision of comprehensive sexuality education for children and young people are numerous. Com- prehensive sexuality education encourages respectful relationships.15 For

6. UNESCO, internationaL teChniCaL guidanCe on sexuaLity eduCation 1, VoL 1 (2009). 7. Id. 8. European Expert Group, supra note 5, at 427. 9. James J. Ponzetti, Jr., Sexuality Education: Yesterday, Today and Tomorrow, in eVidenCe

based approaChes to sexuaLity eduCation 1 (James J. Ponzetti, Jr., ed., 2015). 10. Id. at 25. 11. Mary Crewe, Between Worlds: Releasing Sexuality Education From Bondage, in eVidenCe-

based approaChes, supra note 9, at 98, 100. 12. See, e.g., Clare Tanton et al, Patterns and Trends in Sources of Information about Sex

among Young People in Britain: Evidence from Three National Surveys of Sexual Attitudes and Lifestyles, BMJ OPEN 5:e007834 (2015); UK youth parLiament, sre: are you getting it? (2007).

13. See, e.g., Rachel Heah, Sexuality Education in England and Wales: The Views of Children and Young People (Unpublished Ph.D. thesis, University of Liverpool, 2019).

14. Id. 15. unesCo, strategy on eduCation For heaLth and WeLL-being 5, 8 (2016).

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example, young people in Sweden and the Netherlands—where sexuality education is comprehensive and widespread—regard love and maturity as preconditions for sex.16 It also empowers children by educating them about their bodies and about sexuality.17 From a personal health-protection perspective, research indicates that such programs reduce risky behavior,18 delay sexual debut, and decrease sexual activity better than abstinence-only- until-marriage (AOUM) programs.19 Countries with well-established sexuality education programs, such as Sweden, Norway, and the Netherlands, have lower teenage pregnancy rates than countries that do not.20

Of course, many of these individual health benefits are also beneficial from a public health (and purse) perspective. Similarly, education that encour- ages relationships based on respect is good for individuals and for society. It has been found that countries with sexuality education have better gender equality than countries that do not.21 The United Nations Special Rapporteur on the Right to Education emphasizes that sexuality education can further the rights of various minorities and vulnerable groups in society—people with disabilities for example, as well as LGBTQQI people. The Rapporteur states that sexuality education should “ensure that, inter alia, the gender dimension, human rights, new patterns of male behavior, diversity and dis- ability are included.”22 As will be discussed below, the European Court of Human Rights and other decision-making bodies have noted that sexuality education can meet pluralism goals such as encouraging tolerance and di- versity in society. Finally, individual and public health benefits overlap with the individual and public benefits of fostering modern, pluralist societies. Programs that address gender power relations have been found to be five times as effective in reducing pregnancy and sexually transmitted infections (STIs) as those that do not.23

Unfortunately, international research indicates that the provision of comprehensive sexuality education is not the norm. It is reported that sexu- ality education tends to focus on the mechanic and biological aspects of heterosexual sexual intercourse and reproduction rather than looking more

16. See Janet Helmer et al, Improving Sexual Health for Young People: Making Sexuality Education a Priority, 15 SEX ED. 158, 165 (2015).

17. unesCo, emerging eVidenCe, Lessons and praCtiCe in ComprehensiVe sexuaLity eduCation: a gLobaL reVieW 12 (2015).

18. UNESCO, UNESCO, guidanCe on sexuaLity eduCation, VoL. 1, supra note 6, at 13-17. 19. Chris Collins et al, Abstinence Only vs. Comprehensive Sex Education: What are the

Arguments? What is the Evidence?, poLiCy monograph series (2002), cited in Safe Project, Sexual and Reproductive Health and Rights of Young People in Europe 17 (2007).

20. UNESCO, emerging eVidenCe, supra note 17, at 19. 21. Id. at 19. 22. UN Special Rapporteur on the Right to Education, Report to the UN General Assembly

(Sex Education) ¶¶ 69, 87(d), U.N. Doc. A/65/162, 2010). 23. Id. at 14, citing Nicole A. Haberland, The Case for Addressing Gender and Power in

Sexuality and HIV Education: A Comprehensive Review of Evaluation Studies, 41 int’L. perspeC. sexuaL & reproduCtiVe heaLth 31 (2015).

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holistically at the social and emotional aspects of sexual relationships.24 The reasons for this are varied. It may be because of the religious ethos of the school.25 It can also be due to the wide discretion states and schools are perceived to have concerning what is included in sexuality education (if it is received at all). A strong factor appears to be embarrassment amongst teach- ers who may not have chosen to teach about sexuality but find themselves doing so anyway,26 meaning they are likely to limit sexuality education to the biological.

It is also likely due to a concern that has been identified in the interna- tional literature, namely that such information will preternaturally sexualize children and encourage sexual experimentation. Research tells us that this is not the case.27 Moreover, the reality is that young people will engage in or be exposed to sexual activity with or without sexuality education. The difference is that without sexuality education they may partake in sexual activity in ignorance of the possible consequences for themselves and for others. As Archard explains, “the ideology of “innocence” may not protect children from sex. It may only expose them to a sexuality in the face of which such innocence is debilitating.”28

Connected to the misplaced concern that sexuality education sexualizes children is the failure to recognize that it can be provided to very young children in an age-appropriate way. Young children also need education about consent and respect to help them protect themselves and to prevent their harming others. National experts in public health and child protection such as social work organizations, the United Kingdom National Society for the Prevention of Cruelty to Children, and intergovernmental organiza- tions such as the UN and the Council of Europe, not only advocate for such education but also provide tool kits to facilitate it.29

The provision of inaccurate sexuality education is also an issue. Review- ing the scientific evidence on the failure of AOUM programs to protect young people from STIs, the US Society for Adolescent Health and Medicine has

24. Id. ¶ 47; saFe proJeCt, Compendium on young peopLe’s srhr poLiCies in europe 8 (2012). 25. In Ireland for example a large proportion of schools are religious run. See saFe proJeCt,

Compendium id. at 51. 26. Alison Kershaw, Teachers “Embarrassed Over Sex Lessons,” independent (23 July 2010),

https://www.independent.co.uk/news/education/education-news/teachers-embarrassed- over-sex-lessons-2033654.html. Students have picked up on and critiqued this embar- rassment as hindering their education. See Pandora Pound et al, What do Young People Think About Their School-Based sex and Relationship Education? A Qualitative Synthesis of Young People’s Views and Experiences, 6 brit. med. J. Open e011329 8-9 (2016).

27. Douglas B. Kirby et al, Sex and HIV Education Programs: Their Impact on Sexual Be- haviors of Young People Throughout the World, 40 J. adoL. heaLth 206 (2007).

28. daVid arChard, ChiLdren: rights and ChiLdhood 40 (1995). 29. See e.g. http://www.socialworkerstoolbox.com/the-underwear-rule-guides-for-children-

and-parents/; https://www.nspcc.org.uk/preventing-abuse/keeping-children-safe/under- wear-rule/; http://www.underwearrule.org/underwear_en.asp.

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come to the conclusion that such programs undermine public health goals, are contrary to the child’s right to access to health information, and are “at odds with commonly accepted notions of medical ethics.”30 Similarly, the UN Special Rapporteur on the Right to Education notes that AOUM programs deny children the knowledge that would facilitate them in making informed decisions.31 From a health perspective, young people who experiment with various sexual practices in ignorance of or on the basis of misinformation about STIs are engaging in behavior that is health-threatening and can be life-threatening.32

B. The Importance of the Social and Emotional Elements of Sexuality Education

The failure to include the social and emotional aspects of sexual relation- ships in many sexuality education curricula has significant negative conse- quences. Apart from affecting the credibility of the educator in the eyes of students by desexualizing sex and thus undermining the messages sought to be imparted,33 the failure to consider the context in which sexual encounters take place risks leaving children liable to being victims and/or perpetrators of sexual abuse. Consent is not only the basis for respectful and healthy sexual interactions, but it is also the legal boundary between permissible and impermissible sexual contact. Yet a 2017 study of over 3000 US high school students and young adults found that most had never had a conversation with either a parent or an educator in school about matters pertaining to consent.34 A survey of 1000 Australian women found that only 37 percent were taught about consent.35

In this information vacuum, young people are left to piece together for themselves the parameters of their sexual relationships without the knowledge or skill-set to evaluate the “conflicting and sometimes damaging

30. John S. Santelli et al, Abstinence-Only-Until-Marriage: An Updated Review of US Poli- cies and Programs and Their Impact, 61 J. adoL. heaLth 273, 401, 402 (2017).

31. UN Special Rapporteur on Right to Education, supra note 22, ¶ 65. 32. UNESCO, teChniCaL guidanCe, supra note 6, at 3. 33. Pound et al, supra note 26, at 7. 34. riChard Weissbourd et aL, the taLk: hoW aduLts Can promote young peopLe’s heaLthy reLation-

ships and preVent misogyny and sexuaL harassment 17 (2017). Two different surveys were conducted with 1300 students in the first and 2195 in the second.

35. Sienna Aguliar, Sex Education Needs a Lesson in Consent, huFF. post aust. (14 July 2016), https://www.huffingtonpost.com.au/sienna-aguilar/sex-education-needs-a- lesson-in-consent_b_9352420.html?guccounter=1&guce_referrer=aHR0cHM6Ly93d3 cuZ29vZ2xlLmNvbS8&guce_referrer_sig=AQAAAGADk85VwzdNupczg9GF8u-vST- 9TXyuJgCs_UZePTPuLcDD8s14OKE7x2XZZE8NPTvotk8006MyezEIUOrje2CsueaDM- WKSfQ4AlGCzTIN9gKCfspGVSQuD2NgFjn9ImOZaQN13r05d-JXcCOkci2asiOOg08D- rEq3D06K2y3lx.

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messages from their peers, the media or other sources.”36 These messages, which mean that sexual encounters between young people take place in an unequal terrain where consent can be confused with acquiescence or can be seen as optional, provide the context for some troubling survey find- ings. Twenty-seven percent of those questioned in the 2016 Eurobarometer survey on gender-based violence believed that it was appropriate to have sexual intercourse with a woman without her consent in at least one of the following circumstances: where she was drunk, where she voluntarily went home with someone, where she wore revealing clothing, where she did not fight back or say no, where she has had several sexual partners, and where she was flirting with her assailant.37 A 2014 survey of eighty-six US male college students found that 31.7 percent of those questioned would use force to obtain intercourse as long as no one found out.38 However when they were asked directly if they would rape a woman this figure dropped to 13.6 percent. Although the latter figure is obviously worrying, so too is the residual 18.1 percent who would in fact rape because they do not understand that non-consensual sex is rape.

Although efforts must be made not to frame sexuality as something threatening, child protection must be one of the aims of sexuality educa- tion. Sadly, many children are already exposed to distinctly harmful adult behaviors and problems before their time. Child sexual abuse is endemic. A 2011 meta-analysis estimated that globally 12.7-18 percent of girls and 7.6 percent of boys experience it, demonstrating both the prevalence of sexual abuse, and its gendered nature. In addition, it is likely that children and young people do not recognize sexual abuse when it occurs to them. In 2013 it was found that 44 percent of Irish students who experienced unwanted sexual contact did not think what happened to them was a crime.39 Young people may also be unable to articulate their discomfort with unwanted behavior because they have not practiced the language of consent or bodily autonomy and thus submit to it.40

Such research findings give enormous weight to the argument that states have an obligation to educate children not just about the biological elements of sex, but to provide comprehensive sexuality education to all children to ensure that sexual health, respectful relationships and consent are concepts that are well understood. There are indications of change in some jurisdictions. It is reported that in the wake of the #MeToo movement,

36. UNESCO, teChniCaL guidanCe, supra note 6, at 8. 37. european Commission, eurobarometer speCiaL report 449: gender-based VioLenCe 65 (2016). 38. Sarah R. Edwards et al, Denying Rape but Endorsing Forceful Intercourse: Exploring

Differences Among Responders, 1 VioLenCe & gender 188 (2014). 39. union oF students ireLand, say something: a study oF students’ experienCes oF harassment,

staLking, VioLenCe & sexuaL assauLt 37 (2013). 40. padraig maCneeLa et aL, deVeLopment, impLementation and eVaLuation oF the smart Consent

Workshop on sexuaL Consent For third LeVeL students 24-25 (2017).

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several American states have introduced legislation compelling additions to public school sexuality education including language on consent and healthy relationships.41 Such modernizations have the potential to protect children from becoming both victims and perpetrators of sexual crimes.

III. ACKNOWLEDGING THE RIGHT TO SEXUALITY EDUCATION

There is an extremely strong basis for arguing that there is a right to com- prehensive sexuality education under international human rights law, despite the majority of international and regional human rights law documents not explicitly enumerating such a right.42 This is because numerous sources of international law and guidance strongly assert such a right, particularly as an integral component of the right to health. The UN Committee on Economic, Social and Cultural Rights is the implementing body of the International Covenant on Economic, Social and Cultural Rights, which enshrines the right to the highest attainable standard of health (Article 12). The Committee states that Article 12 obliges states to ensure that:

[U]p-to-date, accurate information on sexual and reproductive health is publicly available and accessible to all individuals, in appropriate languages and formats, and to ensure that all educational institutions incorporate unbiased, scientifi- cally accurate, evidence-based, age-appropriate and comprehensive sexuality education into their required curricula43

The CRC, which has been almost universally ratified, provides that chil- dren have the right to access information aimed at the promotion of their health (Article 17), and that states have the obligation to develop preventive health care, education and services (Article 24). The CRC implementing body—the UN Committee on the Rights of the Child (the Committee)—em- phasizes that children have the right to “age-appropriate, comprehensive and inclusive sexual and reproductive health education, based on scientific evidence and human rights standards.”44

The right to education is another core human right enshrined in vari- ous international treaties, agreements and conventions. A right to sexuality

41. Sasha Jones, States Introduce Sex Education Legislation Following #MeToo Movement (30 May 2019), http://blogs.edweek.org/teachers/teaching_now/2019/05/states_intro- duce_sex_ed_legislation_following_me_too_movement.html.

42. This is in spite of some lone voices from religious organizations arguing against this, see for example Melissa Curvino & Meghan Grizzle Fischer, Claiming Comprehensive sex Education is a Right Does Not Make it so: A Close Reading of International Law, 20 neW bioethiCs 72 (2014).

43. UN Committee on Economic, Social and Cultural Rights, General Comment No. 22 on the Right to Sexual and Reproductive Health (Article 12 of the International Covenant on Economic, Social and Cultural Rights), ¶ 63, U.N. Doc. E/C.12/GC/22 (2 May 2016).

44. UN Committee on the Rights of the Child, General Comment No. 22 on the Implemen- tation of the Rights of the Child During Adolescence, ¶ 61, U.N. Doc. CRC/C/GC/20 (6 Dec.2016).

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education can be read into the CRC with reference to the aims of education that it identifies in Article 29 and to the Committee’s General Comment on the Aims of Education.45 Of greatest relevance are:

(b) The development of respect for human rights and fundamental freedoms, and for the principles enshrined in the Charter of the United Nations;

. . .

(d) The preparation of the child for responsible life in a free society, in the spirit of understanding, peace, tolerance, equality of sexes, and friendship among all peoples, ethnic, national and religious groups and persons of indigenous origin.

It is clear from the above that the right to education in the CRC is not confined to literacy and numeracy. The General Comment notes that “[b]asic skills include . . . life skills such as the ability to make well-balanced decisions; . . . and to develop a healthy lifestyle, good social relationships and respon- sibility . . . which give children the tools needed to pursue their options in life.”46 As sexual health is part of a healthy lifestyle, various implementing bodies have emphasized the state obligation to provide sexuality education. The UN Special Rapporteur on the Right to Education asserts that: “… States have an unavoidable obligation to guarantee education that is free from prejudices and stereotypes”47 citing the complementary roles of school and family, while the Committee emphasizes the positive duty on states to take measures to provide sexuality education to children and young people.48

There is also an inherent gender rights element to sexuality education. First, as the Committee on Economic, Social and Cultural Rights emphasizes, the “reproductive capacities” of women and girls means that it is essential that they have information on sexuality to enable meaningful choices in their lives.49 Second, although males and females experience sexual abuse and exploitation, it is females who disproportionately suffer. Given its focus on gendered harms experienced by women and girls, it is unsurprising that the Convention on the Elimination of Discrimination Against Women contains an express right to sexuality education. Articles 5(b), 10(h) and 16(1)(e) all

45. Committee on the Rights of the Child, General Comment No. 1, The Aims of Education, U.N. Doc. CRC/GC/2001/1 (2001).

46. UN Committee on the Rights of the Child, Annex IX General Comment No. 1 (2001) Article 29 (1): The Aims of Education, ¶ 9, U.N. Doc. CRC/GC/2001/1 (17 Apr.2001), available at http://www.right-to-education.org/sites/right-to-education.org/files/resource- attachments/CRC_General_Comment_1_en.pdf.

47. UN Special Rapporteur on the Right to Education, supra note 22, ¶ 72. 48. See e.g. UN Committee on the Rights of the Child, Concluding Observations on the

Fifth Periodic Report of the United Kingdom of Great Britain and Northern Ireland, ¶ 65, U.N. CRC/C/GBR/CO/5 (12 July 2016).

49. General Comment 22, Right to Reproductive Freedom, supra note 44, ¶ 25.

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require states to provide education about family matters, including family planning.50

There is accordingly a strong argument that a right to sexuality edu- cation encompasses a right to a curriculum that challenges social norms that pose a danger to women and girls. The UN Special Rapporteur on the Right to Education opines that a failure to provide “planned, democratic and pluralist sexual education” results in the provision of a model by omis- sion, a model which “uncritically reproduces patriarchal practices, ideas, values and attitudes that are a source of many forms of discrimination.”51 If sexuality education is left exclusively to parents, there is a risk that it will (un)wittingly include discriminatory views that are contrary to individual and societal interests. Research from Ireland tells us that when parents discuss sexuality with their children, the emphasis of the education differs according to gender, with parents assuming their sons will be sexually active and their daughters not.52 Research from the UK and the US has found that females from ethnic and religious minorities have appreciated the provision of sexuality education in schools because sex was either not discussed in their homes or it was “value laden” in content.53

This broader context requires sexuality education to include informa- tion on “the right to say no to sex”54—understanding this right is key to equipping children, and everyone, with an enhanced ability to stay safe from abuse. It also requires that sexuality education be sex-positive. This is not the same thing as sex-promoting. It means recognizing the sensuality of sexual expression which, in addition to addressing student complaints that sexuality education disembodies sex, will perform a protective function. As Hirst writes:

If pleasure is asserted as a right and continually reinforced through SRE … young people are more likely to feel vindicated in declining pressure to take part in sexual acts or related activities they are not comfortable with, might not enjoy, regret or evoke anxiety.55

50. See Meghan Campbell, Equality and the Right to Education Let’s Talk About sex, in hu- man rights and equaLity in eduCation: ComparatiVe perspeCtiVes on the right to eduCation For minorities and disadVantaged groups 111 (Sandra Fredman et al. eds., 2018).

51. UN Special Rapporteur on the Right to Education, supra note 22, ¶ 76. 52. abbey hyde & etaoine hoWLett, Crisis pregnanCy agenCy, understanding teenage sexuaLity in

ireLand 33-34 (2004). 53. Aida Orgocka, Perceptions of Communication and Education About Sexuality Among

Muslim Immigrant Girls in the US, sex ed. 255 (2004); Juping Yu, School sex Education: Views Within British-Chinese Families, 10 asian J. nurs. 171 (2007); Neil Selwyn & Eryl Powell, Sex and Relationships Education in Schools: The Views and Experiences of Young People, 107 heaLth ed. 219 (2007).

54. UN Special Rapporteur on the Right to Education, supra note 22, ¶ 55. 55. Julia Hirst, “It’s got to be About Enjoying Yourself”: Young People, Sexual Pleasure, and

sex and Relationships Education, 13 sex ed. 423, 430 (2013).

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In sum, there is now broad acceptance at the level of international human rights and public health bodies that sexuality education is a human right. Research further indicates that throughout Europe and Central Asia sexuality education has become the norm,56 demonstrating that the importance of such education is also recognized at domestic level. Moreover, it is a necessary right, the importance of which is grounded in solid evidence—it protects children’s and young people’s health, prevents victimization (because it gives them the resources to recognize potentially abusive behavior and so avoid exploitation), and supports values conducive to a more equitable society (thus reducing abuse).

IV. PROVISION OF SEXUALITY EDUCATION: AT THE DISCRETION OF PARENTS?

One of the main obstacles to the provision of compulsory comprehensive sexuality education has been parental objection. In 2019, for example, ex- tensive protests in Birmingham, UK against lessons inclusive of information about LGBTQQI matters made headlines, even attracting the support of a small number of sympathetic politicians.57 Arguments from some groups of parents, primarily from conservative religious backgrounds, have led to cases being taken at regional and domestic level about the ability of the state to render sexuality education compulsory in state schools. In this section it will be noted that parental rights in respect of education are not absolute. Parental objections to sexuality education likely represent a minority position and as such should not be accorded undue weight. It will also consider the ways in which these arguments and associated cases have generally failed to focus on children’s rights.

A. Perceptions of Parental Objections

The ostensible right of parents to withdraw their children from sexuality education is a prominent matter in the arena of sexuality education. The UN Special Rapporteur on the Right to Education points out that the religious beliefs of parents can affect whether children receive sexuality education.58 An example of this tendency at play is the fact that in the UK, in spite of the introduction of compulsory sexuality education under the Children and

56. eVert ketting & oLena iVanoVa, FederaL Centre For heaLth eduCation, sexuaLity eduCation in europe and CentraL asia: state oF the art and reCent deVeLopments (2018).

57. Sima Kotecha, Birmingham LGBT row: “Homophobic Protests Must Stop,” BBC (7 June 2019) https://www.bbc.co.uk/news/uk-england-birmingham-48545247.

58. UN Special Rapporteur on the Right to Education, supra note 22, ¶ 5.

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Social Work Act 2017, the right of parents to withdraw persists.59 How- ever such accommodations indicate a failure to recognize the provision of sexuality education as a means to keep children empowered, therefore protecting their rights as individuals. This opt-out possibility is particularly problematic where groups such as children with disabilities deemed to be difficult for sexuality education or otherwise falling outside the norm run the risk of missing out on such education.60 As one special needs teacher put it: “[o]ur guys can’t opt-out of puberty.”61

It is indeed a parental right to determine the nature of their children’s education to a large extent. There is also a positive obligation on the state, for example inherent in the European Convention on Human Rights, to respect parental religious and philosophical convictions62 and states must not pursue an aim of indoctrination contrary to this.63 There are strong argu- ments however that it is proportionate to override parental preferences when it comes to sexuality education.64 Parents are not permitted to opt-out of various elements of curricula, such as literacy and numeracy. The suggestion that they should be able to do so would be met with derision on the basis that all children must learn these crucial skills in order to function in society, and to prevent this learning would be unduly harmful to their well-being and future. This is why there are minimum standards of education which must be met even for children who are home schooled.

The same arguments apply to sexuality education, perhaps more force- fully considering the benefits of sexuality education outlined previously, and the risks that ignorance and misinformation pose to children and young people. In addition, while it is legitimate to respect parental convictions, there are and should be limits. The European Court of Human Rights has held that parental convictions that are “incompatible with human dignity” or that “conflict with the fundamental right of the child to education”65 are not protected. This provides a basis for arguing that the dignity of children requires the provision of sexuality education even against the wishes of parents.

59. dept. oF eduCation, reLationships eduCation, reLationships and sex eduCation (rse) and heaLth eduCation: guidanCe For goVerning bodies, proprietors, head teaChers, prinCipaLs, senior Leader- ship teams, teaChers 7(2018).

60. Aoife Daly, Rachel Heah & Kirsty Liddiard, Vulnerable Subjects or Autonomous Actors: The Right to Sexuality Education for Under-18s With Disabilities, 9 gLobaL stud. ChiLd- hood 235 (2019).

61. Rachel Williams, Pupils With Learning Difficulties are Being Denied Their Right to sex Education, guardian (23 Mar. 2015), https://www.theguardian.com/education/2015/ mar/23/learning-difficulties-sex-education-abused.

62. See Campbell & Cosans v. United Kingdom, 4 eur. Ct. h.r. 293, ¶ 37 (1982). 63. Kjeldsen, Busk Madsen & Pedersen v. Denmark, 1 eur. Ct. h.r. 711, ¶ 52 (1976). 64. Meghan Campbell, The Challenges of Girls’ Right to Education: Let’s Talk About Human

Rights-Based Sex Education, 20 int’L J. hum. rts. 1219 (2016). 65. See Campbell & Cosans, supra note 63, ¶ 36, reaffirming Kjeldsen, supra note 64, ¶

52.

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Unfortunately, European Court of Human Rights jurisprudence concern- ing sexuality education has turned primarily on questions around balancing the position of parent and state, rather than children’s rights. These cases will be considered in the next section. Before doing so, it is important to note that while the parental opt-out issue is a significant one, there are indications that parents are not, in general, as resistant to comprehensive sexuality education as the discourse in the area would lead one to believe. Most parents want what is best for their children and recognize that sexual- ity education represents this. US research from 2017 indicated that over 93 percent of parents place great importance on sexuality education at middle and high school level and that high levels of support existed regardless of political affiliation.66 The sexuality education supported by these parents included a wide range of topics including healthy relationships, puberty, abstinence, STIs and birth control. Bearing such research in mind, it seems likely that the efforts of a few conservative/religious parents are having a disproportionate effect on whether sexuality education is provided by states to all children. It is likely that their efforts create a perception that there is greater resistance to sexuality education than there is in reality.

Another possible reason for the lack of provision for the right relates to insufficient emphasis on state obligations to provide for the right. As Campbell notes, the ability of conservative and religious groups to influence the availability of sexuality education to children has been facilitated “by the challenge of recognizing and enforcing the state’s positive obligation to provide sex education in both public and private institutions.”67 As noted above, a variety of international instruments have made strong provision for the right and/or their implementation bodies have emphasized they are to be interpreted accordingly. This indicates that States Parties to these instru- ments have positive obligations in this regard. Yet, as arises frequently in the area of international human rights, problems of implementation lie in the interpretation of what those standards entail.68 States may interpret the right to sexuality education as limited to the provision of biological information. States may also interpret the right as requiring opt-out powers for objecting parents. Political and resource issues may make these convenient interpreta- tions. Yet such interpretations are contrary to international legal standards, and leave children and young people more vulnerable to sexual violence.

66. Leslie Kantor & Nicole Levitz, Parents’ Views on sex Education in Schools: How Much do Democrats and Republicans Agree?, 12 pLos one e0180250 (2017).

67. See Campbell, supra note 65, at 1223. 68. aoiFe daLy et aL., enhanCing the status oF un treaty rights in domestiC settings (2018).

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B. Case Law Concerning Sexuality Education: Emphasizing Parent and State

Interpretations of international law standards in domestic and regional courts are crucial for shaping understandings of those standards. Cases have emerged at regional and domestic levels where the provision of sexuality education has been an issue. One strong feature of the case law in the area is that, as with most children’s rights matters, the litigation tends to be taken by parents and therefore the children’s rights perspective becomes obscured in the dispute between parent and state.

1. European Convention on Human Rights Case Law Phase 1: A Limited Success for Sexuality Education

The European Convention on Human Rights (ECHR) is perhaps the primary source of human rights case law on sexuality education to date. Article 2 of Protocol 1 of the ECHR states that: “In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.”69 As this instrument is primarily about negative obligations, the right to education generally has been about parental freedoms rather than the obligation of the state to pro- vide anything in particular.70 Consequently case law concerning sexuality education has not been focused on states’ obligations to provide sexuality education in furtherance of children’s rights but rather on questions around balancing the position of parent and state.

In the 1976 case of Kjeldsen, Busk Madsen & Pedersen v. Denmark71 the European Court of Human Rights (ECtHR) found that compulsory sexuality education in public schools does not violate parental freedom. The Court opined that the purpose of the education was for a legitimate state interest, that being the reduction of the rate of unwanted pregnancies. The education was not for the purpose of indoctrination, and the information provided was not based on morals or beliefs, but rather objective fact and knowledge.72 The education was, the ECtHR determined, provided in an objective, critical and pluralistic manner. Unlike religious education therefore, it was permissible for this sexuality education to be made mandatory and it did not violate Article 2 of Protocol 1 to the Convention.

69. European Convention for the Protection of Human Rights and Fundamental Freedoms, (ECHR) opened for signature 4 Nov. 1950, art 2, 213 U.N.T.S. 221, Europ. T.S. No. 5 (entered into force 3 Sept. 1953).

70. See katarina tomašeVski, human rights obLigations: making eduCation aVaiLabLe, aCCessibLe, aCCeptabLe and adaptabLe, right to eduCation primers no. 3, at 13 (2001).

71. Kjeldsen, supra note 64, ¶ 52. 72. Similarly, in Folgero v. Norway, 46 eur. Ct. h.r. 47 (2008) the Court held that states

have a positive duty to ensure respect for parents’ convictions, and opined that this includes achieving a balance between majority and minority rights and interests.

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While it is positive that the case recognized that sexuality education is a public good, it is clear is that a children’s rights-based approach (or even acknowledgement of children’s interests) is lacking in this reasoning. There is no mention of the fact that children are vulnerable and require education to support them to protect themselves and to recognize abuse. It is simply an acknowledgement that states may deliver such education as long as it is neutral in nature.

The public good of sexuality education was also noted in the 2011 case of Dojan v. Germany.73 Conservative religious parents were not permitted by a school in a region of Germany to exempt their children from mandatory sexuality education classes (and other elements of the curriculum). The parents argued that this education conflicted with their religious and moral beliefs. Some parents were fined for removing their children (and other activities) and some, refusing to pay the fines, were imprisoned for weeks or months. The ECtHR determined in Dojan that education rights were not violated by the sexuality education at issue in this case. The state could require children to attend sexuality education classes with the aim of integrating minorities. The sexuality education in this case constituted a neutral transmission of knowledge and promoted participation in a pluralistic society. These objec- tives were found to be in conformity with the principles of pluralism and objectivity inherent in Article 2 of Protocol 1. The Court also noted that parents were free to educate their children at home if they so wished. The decisions of German authorities therefore fell within the margin of appre- ciation of the state in establishing the nature of their educational systems.

Here again the ECtHR entirely misses the point that children as individu- als have a right to sexuality education. The focus is not on children’s own empowerment and protection, but on the benefit to the state of educational programs which encourage pluralist values. Furthermore, the Court empha- sizes as part of its reasoning upholding the sexuality education in question that children can be home schooled, and therefore parental choice remains. This reasoning is deployed without any consideration of the fact that this in effect means that individual children are not provided sexuality education by the state and may well not receive any from parents either. This leaves them vulnerable to abuse and potentially open to prosecution if they engage in sexual behavior that is either prohibited by age of consent laws and/or is exploitative. Parental religious or conservative beliefs will not protect a child or young person who is being prosecuted for sexual offending, so it is inappropriate that they are invoked to deny them access to information that may stop them from engaging in the criminalized behavior.

Campbell also points to the problematic reasoning of the case that as long as the education is “neutral” it does not violate the ECHR.74 It is now

73. Dojan v. Germany, App. No. 319/08 (Admissibility) (13 Sept. 2011). 74. Campbell, supra note 65, at 1219.

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emphasized by, amongst others, the UN Special Rapporteur on the Right to Education that sexuality education should not in fact be neutral; it should instead aim to achieve gender equity and pluralism in society.75 The ECtHR’s emphasis on the neutrality of the education (i.e. as a factor in favor of the state not overstepping its margin of appreciation) is further indication of the failure by the Court to acknowledge that children have a right to be educated on power dynamics, positive relationships, and staying safe in a world of inequality between adults and children, and between genders.

2. Canadian Case Law: A Focus on Pluralism

At domestic level, Canadian courts have also grappled with parent-state struggles over the provision of sexuality education in public schools. These cases have likewise involved courts giving little if any consideration to the position of children themselves. The focus has continued to be on balancing the rights of parents to control the education of their children with the abil- ity of the state to progress pluralist values. For example, in Chamberlain v. Surrey School District, the Supreme Court held that a School Board’s refusal to approve kindergarten books depicting same-sex parented families was contrary to its obligation to promote tolerance.76

The Board’s refusal to approve books in Chamberlain was on the ba- sis that it would be controversial due to the religious objections of some parents regarding the morality of same-sex relationships. It was held by the Supreme Court that the Board acted contrary to its School Act 1996 man- date to promote tolerance by prioritizing the concerns of one set of parents (those concerned with the morality of same-sex parenting) over others. It was in the interests of same-sex parented families, the Court determined, to have equal recognition and respect in the public-school system. All children would have to be exposed to views and ways of living which were different to those of their parents, continued the Court, and this “is simply a part of living in a diverse society.”77

The decision is heavily concerned with the human rights of the adults involved, citing the competing rights of “homosexual persons to be free from discrimination”78 on the one hand, and parental rights on the other.79 The position of children themselves is also considered albeit in an indirect way as an opportunity80 rather than a right. That is, a concern is expressed that

75. UN Special Rapporteur on the Right to Education, supra note 22, ¶ 76. 76. Chamberlain v. Surrey School District No. 36, 4 S.C.R. 710 (2002). See also the similar

cases of S.L. v. Commission Scolaire des Chênes, 1 S.C.R. 235 (2012); E.T. v. Hamilton- Wentworth District School Board ONCA 893 (2017).

77. Chamberlain, supra note 77, ¶ ¶ 64-67. 78. Id. ¶ 79. 79. Id. ¶ 133. 80. Id. ¶ 10.

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the Board’s decision has the effect of “denying certain children the chance to have their families afforded equal recognition and respect in the public school system.”81 This recognition that pluralistic sexuality education has a child-centric value is significantly undermined, however, by the emphasis in the decision on the ability of parents to home school “or send them to private or religious schools where their own values and beliefs may be taught.”82 As with ECHR jurisprudence, the primary focus here is therefore not on the rights of individual children to learn, but on the dispute between parent and state.

3. European Committee of Social Rights: Interights v. Croatia

Unlike the other cases considered, the challenge to the sexuality education curriculum in Croatia in Interights v. Croatia 83 was not taken by conserva- tive/religious parents. Instead it was a European Social Charter Collective Complaint lodged by non-governmental organizations. Despite this, neither the focus of the litigants’ arguments nor that of the judgment shifted. Both were squarely concerned with whether the curriculum was discriminatory against particular groups (e.g. same-sex couples and women) rather than with the treatment of children’s own right to sexuality education.

The challenge was made on the basis that the sexuality education model implemented in Croatian schools was religious and ideology based. It promoted abstinence at the expense of alternatives such as teaching about contraception. The applicants argued that these programs failed to provide adolescents with objective, accurate information on crucial reproductive health issues. It was further argued that such curricula were unconstitutional and in violation of international human rights law, including the rights to information, education, health, and non-discrimination. The European Com- mittee of Social Rights agreed that the non-discrimination provision of the European Social Charter had been violated.

The Committee held that states had a wide margin of discretion to set their own agenda on sexuality education and therefore did not (as encour- aged by the applicants) find a failing in the short duration of the sexuality education program, nor did the Committee make a pronouncement on the type of staff being engaged to deliver it (i.e. religious conservatives). How- ever, the Committee held that several passages from a government-approved textbook used in the lessons were discriminatory. The statements referred to the parents of those attracted to members of the same sex as blameworthy as they had “impede[d] their children’s correct sexual development” and

81. Id. ¶ 11. 82. Id. ¶ 30. 83. International Centre for the Legal Protection of Human Rights (Interights) v. Croatia,

Complaint No. 45/2007 (30 Mar. 2009).

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attributed primary responsibility for the spread of STIs to those in “homo- sexual relations.”84

The use of these statements was held to be in violation of the nondis- crimination clause of the Charter’s Preamble. The Committee concluded that the material in the textbook was inappropriate and contrary to human dignity, stating that:

By permitting sexual and reproductive health education to become a tool for reinforcing demeaning stereotypes, the authorities have failed to discharge their positive obligation not to discriminate in the provision of such education, and have also failed to take steps to ensure the provision of objective and nonex- clusionary health education.85

The recognition of an obligation to provide “health education” is impor- tant, but the pluralism and gender equality goals of sexuality education are stymied if the content of this education is merely objective. In this choice of language, the Committee regrettably mirrors the emphasis on “neutral- ity” in the ECtHR decisions. It is noted that there were statements relating to women in the textbook that were similarly outdated and offensive, such as promoting beliefs about inherent “psychosexual” differences between men and women.86 Yet the Committee was not convinced that the Charter’s Preamble was breached in this regard. An opportunity for the Committee to emphasize the state’s role in and obligation to progress gender equality was, unfortunately, missed.87

While the Committee’s decision was positive in recognizing that states have a duty to resist stereotypes, this is once again a decision which focuses on the harm to pluralism in society rather than the right of children to educa- tion. It critiques “reinforcing demeaning stereotypes”88 rather than the lack of sexuality education for children. This is particularly evident in the way that there was no finding against the very problematic gender elements of the program. It is also evident in the failure to find fault with aspects of the program such as the background of the educators. Children’s rights are not once mentioned in the determination. Children are not positioned as active agents but instead are presented as passive recipients of the problematic syllabus.89

84. Id. ¶ 60. 85. Id. ¶ 61. 86. Id. ¶ 28. 87. It has been reported that, although the relevant textbooks were dropped, efforts to

implement more liberal sexuality education have been strongly resisted by conservative religious groups. Children’s Rights International Network, Croatia, Sexed Stalemate After Decades of Disagreement (n.d.), https://archive.crin.org/sites/default/files/croatiasexedu- cation.pdf.

88. Interights, supra note 84, ¶ 61. 89. Id.

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4. European Convention on Human Rights Case Law Phase 2: A Change in Focus Towards Children in A.R. & L.R. v. Switzerland?

More recently in the 2018 case of A.R. & L.R. v. Switzerland90 the ECtHR rejected as inadmissible an application from a mother (and her daughter) who claimed the school’s refusal to exempt the then seven-year old from “sex education lessons” interfered with her ECHR rights. In this case, it ap- pears that even to refer to it as such was an exaggeration; “lessons” consisted merely of responses where children posed relevant questions. Nevertheless, the applicants sought to rely on Article 8 (the right to respect for private and family life), the right to freedom of religion and conscience (Article 9), and the right to freedom from discrimination (Article 14).

Interestingly the applicants stated that they were not against sexuality education in State schools per se but were calling into question its appro- priateness at the level of kindergarten and early primary school. The ECtHR rejected the admissibility of the application as the child had never actually attended sexuality education classes at the time in question.

Although the case was deemed inadmissible, the Court did make some determinations about sexuality education. It recognized that one of the aims of sexuality education was the prevention of sexual violence and exploita- tion.91 Such violence posed a real threat to the health of children, the ECtHR emphasized, and they had to be protected from it at all ages. The sexuality education of very young children—that is those attending kindergarten or primary school—was therefore justifiable. This was part of the reasoning of the Court that the “sex education,” as practiced in the Swiss canton in question, pursued legitimate aims.

The ECtHR also reasoned that national authorities recognized the parents’ right to provide for their children’s sexuality education and that these lessons were complementary to that. This was because they were not systematic, merely involving teachers reacting to children’s questions as they arose. The Swiss authorities had therefore not overstepped the margin of appreciation accorded to them by the ECHR.

This case was again a challenge to the state’s provision of sexuality education by a parent. Once again, the ECtHR focused on the limited nature of the provision and the conclusion was that it was permissible for the state to provide sexuality education from which children could not be exempted. The extremely limited nature of the education is of particular note. However, there is some real progression from the previous case law evident in the fact that the Court focused on the point that children must be

90. A.R. & L.R. v. Switzerland, App. No. 22338/15 (19 Dec. 2017), https://hudoc.echr.coe. int/eng#{%22itemid%22:[%22001-180402%22]}. The judgment is only available in French.

91. Id. ¶ 36: “[e]lle relève que, selon la directive en question, l’un des buts de l’éducation sexuelle est la prévention des violences et de l’exploitation sexuelles.”

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protected from sexual abuse and exploitation, and that sexuality education is a way of achieving this.

Another factor which distinguishes this case somewhat is the age of the children concerned. The ECtHR acknowledges that even young children may need some basic knowledge, though there is no elaboration beyond this. That the children in question were young perhaps indicates that states are becoming more aware of the need to introduce young children to issues around sexuality and consent (and hence the parental perception of the need to take the case). It also potentially represents a more modern approach by the Court to the issue of sexuality education and an appreciation of children’s own rights and interests.

V. DISTINGUISHING SEXUALITY EDUCATION AS A RIGHT OF THE CHILD

There is a theme in available regional and domestic case law that as long as states transmit neutral information, and as long as parents have a right to educate their children elsewhere, sexuality education is at the discretion of the state. This is distinctly at odds with the international implementation bodies, which now clearly and consistently articulate that children have a right, as individuals, to comprehensive sexuality education which teaches them not just about the practicalities of sex but also about the social and emotional elements of relationships. There is therefore a real lack of under- standing about the nature of the right to sexuality education at domestic and regional levels and also a disjoint between the right and the emerging case law.

The lack of attention to the children’s rights elements of the cases con- sidered above also points to the need to progress a children’s rights approach to litigation and to judgments. Failure to understand the children’s rights implications of a case is not confined to the area of sexuality education. Helen Stalford et al make the point that judgments concerning children across all jurisdictions routinely take a limited approach to children’s rights issues: “Many judgments fail to engage with children’s rights issues, confining their adjudication to a factual review of the available evidence rather than a more nuanced understanding of how that evidence might be interpreted in the light of established children’s rights norms and research intelligence.”92

And yet, the authors continue, information on the law concerning chil- dren’s rights, as well as inter-disciplinary knowledge on children’s social, emotional, cognitive and other capacities and experiences are widely avail- able. These insights must be brought to bear on judicial decision-making.

92. Helen Stalford, Kathryn Hollingsworth & Stephen Gilmore, Introducing Children’s Rights Judgments, in reWriting ChiLdren’s Judgments: From aCademiC Vision to neW praCtiCe 3, 6 (Helen Stalford et al eds., 2017).

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Stalford et al set out that the primary aim of a children’s rights-based judgment is to render children more visible in legal matters by better recog- nizing their status as rights-holders and thus ensuring that their voices and interests are factored into the decision-making of courts. This can be done by (amongst other things) drawing upon the CRC and other human rights instruments, and on theory concerning children’s rights.93 One way in which judges can be encouraged to engage in such approaches is by lawyers (and others) presenting children’s rights-based arguments.

It may be difficult for practitioners such as lawyers to engage children’s rights in relevant cases in a context where courts are not as open to children’s rights arguments (for example through the CRC, which may not be incor- porated into domestic law) as they are to more narrow points of law based in domestic standards. Fortin states that they may “seem more interested in presenting the courts with evidence which can be slotted into rather vague assertions about a child’s welfare than with analyzing what specific rights might protect him or her.”94 As it is assumed that it is in the best interest of children that parents dictate their education this, rather than children’s own perspectives, is overwhelmingly the focus of case law concerning sexuality education. To truly appreciate children’s realities, there must be a broader appreciation of the need to consider children’s position, and their autonomy as individuals, when it comes to questions concerning their education, health and possible liberty. Lawyers who are tasked with defending state sexuality education in relevant cases must therefore emphasize that such education is crucial for each individual child—they simply will not be adequately prepared for life without it.

The shaping of jurisprudence concerning sexuality education will also depend on the nature and frequency of cases taken. Strategic litigation which focuses on the harm to children where they do not have adequate sexual- ity education may be difficult to initiate in the absence of specific victims. Relevant laws may not explicitly recognize the right of each individual child to sexuality education (note the emphasis of the ECHR on the primacy of parental rights for example). The introduction of the Third Optional Protocol to the CRC provides however a new avenue for making such a complaint.95 This individual complaints mechanism provides the opportunity to engage the relevant CRC articles before an implementation body—the Committee on the Rights of the Child—which has already recognized the right to sexu- ality education. Such recognition, and the inherent children’s rights focus

93. Kathryn Hollingsworth & Helen Stalford, Towards Children’s Rights Judgments, in reWrit- ing ChiLdren’s Judgments, id. at 53, 53-54.

94. Jane Fortin, Accommodating Children’s Rights in a Post Human Rights Act Era, 69 mod. L. reV. 299, 303 (2006).

95. See sonJa C. groVer, ChiLdren deFending their human rights under the CrC CommuniCations proCedure: on strengthening the ConVention on the rights oF the ChiLd CompLaints meChanism (2015).

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of the instrument, will undoubtedly shift the focus of any petition taken to prioritize the rights of children themselves. NGOs and activists at domestic level should be encouraged to identify where states are failing to provide sexuality education. Connections must be drawn between these failures, high rates of child abuse and exploitation, and the criminalization of children and young people for unknowingly engaging in child sexual offences. Where efforts fail at domestic level to tackle this, petitions should be taken to the Committee on the Rights of the Child and elsewhere.

VI. CONCLUSION

It is unlikely that sexual violence will ever be entirely eliminated but state provision of comprehensive sexuality education can play an important role in reducing its occurrence. The conversations about consent, power dynam- ics and positive relationships prompted by the #MeToo movement need to inform the development and roll-out of children’s rights-compliant sexuality education curricula from which no child or young person is exempt. No matter what the background, beliefs or ethos of their parents, every child should be equipped with the knowledge of how to protect themselves and of the obligation to respect others. In spite of broad perceptions that pa- rental objections are the main obstacle to widespread implementation of comprehensive sexuality education, it must be acknowledged that resistance appears to derive only from small groups of parents. The arguably more significant issue is the willingness of states to ensure that comprehensive sexuality education is properly prepared, resourced and delivered, and that schools are supported and obliged to deliver it.

Part of achieving this is to shift the focus of legal efforts and legal deter- minations where sexuality education is concerned. It is apt that it has been acknowledged that such education furthers public health and facilitates pluralism. Yet greater efforts must now be made to emphasize the importance of educating from the earliest stages about consent and respect. Sexuality education is not just for adolescents. Nor should it be concerned solely with STIs and the biological elements of reproduction. Comprehensive sexuality education is a duty of the state, as all children have a right to education which prepares them to expect positive, respectful relationships. Though such education is certainly the role of parents too (arguably it is primarily the role of parents), the research is clear that many children simply do not receive sexuality education at home and/or that the quality of that education fails to meet human rights standards.

There must be an insistence that states fill the gap not just for public health or pluralism reasons but also to uphold the rights of each individual child. Where this does not happen, cases must be taken at domestic level

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and failing that to regional/international decision-making bodies. It is cru- cial when this happens that arguments are made, and judgments rendered, which do not solely focus on pluralism and on public health. There must be an emphasis upon the right of each individual child to education which empowers them in matters concerning sex and relationships.