A U.S. district judge in South Carolina overturned a decades-old state law Wednesday that prohibited discussion of LGBTQ issues in public school sex education classes. According to the ruling, the law violates the Equal Protection Clause of the 14th Amendment.
The decision was prompted by a lawsuit filed just two weeks earlier by student members of the Gender and Sexuality Alliance at the School of the Arts in Charleston County, as well as several legal and LGBTQ advocacy groups.
The law, passed in 1988, made it illegal for public school teachers to discuss “alternate sexual lifestyles from heterosexual relationships” except in the context of sexually transmitted diseases. Teachers who disobeyed the law — whether by including LGBTQ issues in their curriculum, answering a student’s question or allowing classroom discussion — could be imprisoned.
Julie Wilensky, a senior attorney for the National Center for Lesbian Rights, which helped file the suit, said the law was clearly discriminatory and unconstitutional.
“There’s no comparable restriction in the law on health education about different sex relationships,” Wilensky told NBC News. “After 32 years, students in South Carolina will no longer be harmed by this outdated law.”
South Carolina Superintendent of Education Molly Spearman was named as the defendant in the lawsuit, but the case was settled in a consent decree, meaning the resolution was mutually agreed upon. In a statement, Spearman said the court’s decision “moves South Carolina forward.”
“The balance of protecting freedoms and preventing discrimination will be upheld in any guidance we send to schools on this issue,” she added.
South Carolina was one of a handful of states left with a so-called no promo homo law on the books, after similar laws were repealed in Arizona last year and in Utah in 2017. Advocates say that their success in the Palmetto State can be repeated in the remaining states with anti-LGBTQ curriculum laws: Texas, Oklahoma, Mississippi, Louisiana and Alabama.
“Today makes me hopeful that states that have similar laws will realize that singling out LGBTQ students for unequal treatment in the classroom can’t pass muster under the Constitution,” Wilensky said.
At the weekly Wednesday meeting of the Gender and Sexuality Alliance, the mood was celebratory. Tenth grader Eli Bundy, the club’s president, said they were shocked by how quickly the court had decided in their favor, and excited that the state Department of Education had not opposed it.
“It makes me really proud and happy to live in South Carolina,” Bundy, who is nonbinary and uses they/them pronouns, said.
For Bundy and their LGBTQ peers, the decision doesn’t just mean more inclusive sex education, but hope for a more inclusive school culture, as well. The lawsuit recounted the experience of one middle school student in Greenville, who had a Clorox wipe thrown at him and was kicked in the chest before being called “diseased” and told that the stairway to hell was “rainbow-colored.” These kinds of incidents, Bundy hopes, will be less likely in a school environment where LGBTQ identities and issues are more normalized.
“When teachers have to say that they can’t talk about queer relationships, it really just sends a message that it’s not acceptable,” they said. “Now that that doesn’t exist anymore, my hope is that for school communities across the state, including our school specifically, the environment and the climate for LGBTQ students will be more accepting.”
In this regard, South Carolina’s public schools have room for improvement, according to a 2017 National School Climate Survey from LGBTQ advocacy group GLSEN. The survey found that 88 percent of LGBTQ students in South Carolina regularly heard homophobic slurs or remarks, and 76 percent said they’d been verbally harassed because of their sexual orientation. LGBTQ youth in general, many surveys have shown, are already significantly more likely to be bullied or have suicidal thoughts than their heterosexual peers.
Jasmine Beach-Ferrera speaks outside the courthouse after a court overturned a decades-old South Carolina law that prohibited discussion of LGBTQ issues in public school sex education classes. Campaign for Southern Equality
Jasmine Beach-Ferrara, executive director of the Campaign for Southern Equality, which also helped file the lawsuit, told NBC News that the decision bodes well for LGBTQ rights in the South as a whole.
“I think the decision is very reflective of where people in the South are,” Beach-Ferrara said. “The politics of the state or the laws of the state are catching up to where people already are in their beliefs and attitudes.”
Still, she said, there’s a long way to go in ensuring legal equality for LGBTQ Southerners. At the same time as its “no promo homo” law is being overturned, South Carolina’s state Legislature is considering twobills that would curtail the rights of transgender people in the state.
“The political reality is we are still contending with some political forces in the state that target LGBTQ folks,” she said. “But we see today’s legal victory as a clear indication of what South Carolina is ready for.”
Beach-Ferrara said the decision itself is a beacon for LGBTQ youth across the South, hopeful for similar victories over their states’ anti-LGBTQ laws.
“There’s a kid in Mississippi who will hear this news today and know that even if the courts or the Legislature of Mississippi haven’t come to the same conclusion yet, a federal court in the South has,” she said. “And that’s powerful.”
When Reggie Bledsoe was a student in the public schools of Newark, New Jersey, he didn’t feel represented by the people he learned about in the classroom. As a black man, he could look to civil rights leaders like Martin Luther King Jr. or Rosa Parks. But as a gay man, he knew he didn’t fit the traditional mold of a black historical figure. He said he wishes he had learned about even one black LGBTQ figure, like Bayard Rustin, King’s longtime adviser and fellow civil rights pioneer, when he was young and in need of inspiration.
“Personally and academically, it would have been so helpful seeing myself in what I was learning,” Bledsoe, who now sits on the Newark Board of Education, told NBC News. “Had I known about Bayard Rustin or [writer and activist] James Baldwin, I could only imagine where I would be and what I would do.”
Future generations of Newark students will get the chance to learn about LGBTQ historical figures — including Baldwin and Rustin (who was posthumously pardoned by California’s governor last week, 67 years after he was arrested on anti-gay charges) — alongside their heterosexual contemporaries.
Reggie Bledsoe, center, at a meeting of the Newark Board of Education in Newark, New Jersey.Courtesy of Newark Board of Education
A year ago, New Jersey became the second state, following California, to pass a law requiring public schools to incorporate an LGBTQ-inclusive curriculum into their classrooms; Colorado and Illinois soon followed suit. And ahead of the statewide law, which goes into effect in September, the nonprofit groups Garden State Equality and Make It Better for Youth rolled out a pilot program last month in 12 public schools across the state, including Newark Arts High School, that will run until the end of the school year in June.
Implementation
Implementation of California’s 2011 LGBTQ curriculum law was slow — so much so that the state didn’t approve LGBTQ-inclusive textbooks until 2017. Wanting to learn from California’s missteps and get ahead of the conservative politicians and anti-LGBTQ groups who vocally opposed the new law, proponents of New Jersey’s LGBTQ curriculum were proactive.
“Developing curriculum for any topic is incredibly resource intensive, so we have designed a full curriculum that we’re going to continue to expand, and we’re going to get it to every public school in New Jersey that wants it completely free,” said Jon Oliveira, director of communications at Garden State Equality, a statewide LGBTQ advocacy group.
He said his organization’s goal is to ensure that an “LGBTQ-inclusive curriculum has wide adoption across the state.” Unlike California’s law, New Jersey’s mandate leaves the specific curriculum materials and lesson plans up to individual school districts, not the state.
The interdisciplinary pilot curriculum, which was written by New Jersey educators, goes beyond lessons about LGBTQ historical figures and their contributions, according to Oliveira. The program also includes a creative writing lesson for how to treat LGBTQ characters, a world languages lesson on gender-neutral pronouns and biology lessons on sex and gender diversity.
Kate Okesen, the founder of Make It Better for Youth, led the writing team for the pilot program. In March 2018, when the curriculum bill was still in committee in the Legislature, she met with a group of enthusiastic volunteer educators, many of whom are LGBTQ themselves. They gathered in the library of Red Bank Regional High School in Little Silver to discuss what obstacles schools might face if the law were passed and what they could do to help ease the transition for teachers. In those conversations, the seed of the pilot program was sown.
“That input helped me recognize … if this is not grounded in the realistic practice of a classroom teacher, we’re not going to make the progress that we want to make with the spirit of the law,” said Okesen, who has been a teacher for 22 years.
Last March, Okesen and two dozen other educators gathered again for a three-day retreat at a Unitarian Universalist retreat center right by the beach town of Barnegat, where later in the year Alfonso Cirulli, the town’s conservative Christian mayor, would call the LGBTQ curriculum law “an affront to almighty God.” This time, with the law firmly on the books, the volunteers had a more concrete goal: to outline a plan to help teachers adapt to the curriculum mandate and brainstorm a collection of lesson plans and guidelines that would become the pilot program.
Kate Oksen (fourth from left on the couch) and other volunteer educators at a lesson-writing planning retreat for the state’s LGBTQ pilot curriculum in Lacey Township, N.J., in March 2019.Courtesy of Kate Oksen
The 12 elementary, middle and high schools from across the state were chosen based on a survey of interested schools, which gathered information on factors like administrative readiness and cultural competency training. The schools, which started incorporating lesson plans from the program last month, each have an assigned instructional coach — or “teacher leader” — who meets with teachers in the building to answer questions about implementation and to gather feedback on the lessons.
Another cohort of a couple of dozen schools, Okesen said, is also participating but without any instructional guidance or oversight.
John Bormann, superintendent of the Rumson School District, where the Forrestdale School is one of the pilot program’s 12 participating institutions, said his district is participating to better understand the requirements of the new law and what it must do to comply ahead of September, when the mandate goes into effect. However, he added, the district has not yet decided to adopt the curriculum.
“A lot of thoughtful decision-making and exploration needs to occur with our faculty and administration before lessons are rolled out to students,” he said.
Representation
At meetings of the Gay-Straight Alliance club at Haddon Heights High School in Haddon Heights, students will sometimes discuss LGBTQ history, like the 1969 Stonewall uprising, according to GSA member Lola Rossi. But Lola, a 10th grader, said this has been the only place in school where she and her peers have been exposed to this history.
“Our history, how we got to where we are, fighting for our rights,” she said, “a lot of LGBT members don’t even know about stuff like that or even current stuff that’s happening within the community.”
Haddon Heights is one of the 12 schools participating in the pilot program this term, and Lola said she’s excited that LGBTQ history is getting more attention in the classroom — for herself, her LGBTQ peers and their straight counterparts.
“What I look forward to the most is kids seeing that we’ve always been here and we’ve always been making an impact,” she said.
Nearly 65 percent of students in the U.S. reported receiving no classroom instruction about LGBTQ people, history or events, and 15 percent reported receiving only negative information about LGBTQ people in the classroom, according to a 2017 report by the LGBTQ education advocacy group GLSEN. While less than 20 percent of students reported seeing positive LGBTQ representations in the classroom, the survey found that a more inclusive curriculum could have a positive effect on LGBTQ students’ experience in school and their educational engagement overall.
Shannon Cuttle, first vice president of the South Orange-Maplewood Board of Education, who is the first elected official in the state to openly identify as nonbinary, said their experience in New Jersey public schools would have been greatly improved if they had seen LGBTQ representation in the classroom.
“Our curriculum and our classrooms should be mirrors and windows for our diverse community,” Cuttle said. “I didn’t have representation when I was in school. Curriculum like this would have been life-changing for me.”
For Cuttle, whose school district is not participating in the pilot program, making curriculum more inclusive is often just a matter of including LGBTQ representation in lessons that are already being taught.
“We’re already talking about LGBT figures in history,” Cuttle said. “Some just may not know that they are.”
That is how the pilot program approaches lessons, according to Oliveira. When learning about the civil rights movement, for instance, students will learn about Rustin, and in lesson plans about World War II, students will be taught about Alan Turing, the “father of computer science,” who helped defeat Nazi Germany by deciphering its coded messages. What’s often left out of the history books is that Turing, despite having been a war hero, was chemically castrated by the British government for being gay, and he later died by suicide.
Bledsoe, the Newark school board member, said he appreciates the pilot program’s inclusion of local LGBTQ history, as well. One of its lesson plans focuses on Sakia Gunn, a 15-year-old black lesbian from Newark whose murder in a 2003 hate crime sparked protests and prompted a statewide conversation about protecting LGBTQ people from violence.
The curriculum also includes lesson plans on Barbra Siperstein, a lifelong transgender rights activist who was the first transgender member of the Democratic National Committee’s executive committee, who died last year, and Marsha P. Johnson, an LGBTQ icon who was born in Elizabeth, New Jersey.
Marsha P. Johnson hands out flyers for support of gay students at N.Y.U. in 1970.Diana Davies / NYPL
“A criticism I often hear is ‘What does being LGBTQ have to do with that person’s contributions to society?'” Oliveira said. “It’s impossible for me, in my mind, to separate [Rustin’s and Turing’s] accomplishments from their identities in the lives that they lived.”
The response to the pilot program in the 12 participating districts has been a mix of enthusiastic support and vocal opposition, according to Oliveira. However, he said he’s confident that the program will be a success, and he added that opponents’ primary argument — that any mention of LGBTQ identity is inappropriate for the classroom — is increasingly falling on deaf ears.
“There are naysayers out there who have an agenda against our community, who say that stuff belongs at home, it’s a private conversation,” he said. “LGBTQ-inclusive curriculum is not talking about people’s private lives. It’s talking about people’s public lives.”
Data component
Along with helping public school teachers adapt their lessons to comply with the new law, the pilot program will also be a source of data for a research study that Oliveira and Okesen hope will make a supportive case for an LGBTQ-inclusive curriculum.
Garden State Equality and Make It Better for Youth are working with a team of researchers from Stockton University in southern New Jersey to measure the effect of the curriculum on individual student outcomes and on the cultural climate around LGBTQ identity in state public schools. Okesen said the research aspect of the pilot program is just as important as the lesson plans.
“I’m hoping that the data we collect demonstrates concretely for schools in New Jersey that the kind of visibility that’s offered by this curriculum creates positive outcomes for kids and that we see a shift in … students saying that they feel accepted and affirmed,” she said.
A best-case scenario, she said, would be for the study to make the case for an inclusive curriculum beyond New Jersey, as well.
A national model?
New Jersey is now one of four states to require LGBTQ-inclusive curriculums in public schools, up from just one before 2019. Oliveira said he thinks the sudden push for more inclusive public education is motivated in part by a resurgence of anti-LGBTQeducationpolicies at the federal level.
“The Trump administration is proof that, at any given moment, these rights can be taken away,” he said. “We have to constantly remain vigilant about moving forward, making sure these stories are told, making sure that our stories are raised and that LGBTQ youth see themselves represented in the classroom.”
Six states still have laws that restrict the mention or promotion of LGBTQ history and people in public schools, according to GLSEN: Alabama, Louisiana, Mississippi, Oklahoma, South Carolina and Texas. The laws, sometimes called “No Promo Homo” laws, forbid teachers from discussing LGBTQ identities in a “positive light” — and often effectively mean they can’t discuss LGBTQ issues at all.
But there is also a growing consensus that curriculums should be more LGBTQ inclusive, as more states, including traditionally conservative ones like Missouri, are considering laws that mirror New Jersey’s.
Oliveira hopes the ready-made curriculum his organization has helped craft will make complying with the new mandate easier for districts across the state. He said that as the push to make curriculums more LGBTQ inclusive catches on across the country, as he hopes it will, other states could benefit from the model, as well.
“We really see the work that we’re doing here as a model that we can bring to every other state in the nation that wants to do it,” he said.
In early October, the United Kingdom’s SkyNews ran a story about the “Detransition Advocacy Network,” a new charity founded by Charlie Evans, a former transgender man who detransitioned in 2018. Evans told SkyNews that “hundreds” of young trans people were seeking her help to return to their sex assigned at birth, and she said more resources are urgently needed for people experiencing post-transition regret.
“I’m in communication with 19- and 20-year-olds who have had full gender reassignment surgery who wish they hadn’t, and their dysphoria hasn’t been relieved, they don’t feel better for it,” Evans told SkyNews. “They don’t know what their options are now.”
Following SkyNews’ interview with Evans, news outlets across the U.K. and the United States covered the phenomenon of detransitioning. The BBC dedicated an hour to the topic on two of its flagship programs in late November, and right-wing outlets such as The Daily Wire and Breitbart covered the topic with an explicitly transphobic spin. New York magazine published a piece last month about another advocacy group for ex-trans people where one interviewee expressed concern that “many teenage women … have been convinced too quickly that the only solution is to change their sex.”
No one disputes that transition regret does exist and that there are trans people who return to the sex they were assigned at birth. However, trans advocates say some of the recent coverage around the topic portrays detransitioning as much more common than it actually is, fueling misconceptions about the gender transition process and painting trans people as just temporarily confused or suffering from a misdiagnosed psychological disorder. This misleading information, they say, can have serious real-world consequences, from misguided policy proposals to social stigma.
“I think the reason why detransition stories are popular in this given time is because it neatly fits into this idea that young people especially are being made to be trans,” Lui Asquith, a legal counselor for U.K.-based LGBTQ group Mermaids, told NBC News. “The media are conjuring up a panic about trans lives, and the first victims of that panic are the young people who are indirectly being told that they’re a phase.”
How common is ‘transition regret’?
There are an estimated 1.4 million transgender adults in the U.S., according to the Williams Institute at the UCLA School of Law, and the U.K.’s Government Equalities Office “tentatively” estimates there are between 200,000 and 500,000 trans people in Britain and Northern Ireland.
While the information regarding how many trans people detransition is sparse, those who work with the trans community say it is uncommon. “The actual numbers around them are significantly low,” Asquith said.
“Are there risks to getting gender affirming care? Maybe. But are there risks for not getting gender affirming care? Definitely. And the risks of the latter usually outweigh the former.”
DR. JACK TURBAN
The information that does exist appears to corroborate Asquith’s claim. In a 2015 survey of nearly 28,000 people conducted by the U.S.-based National Center for Transgender Equality, only 8 percent of respondents reported detransitioning, and 62 percent of those people said they only detransitioned temporarily. The most common reason for detransitioning, according to the survey, was pressure from a parent, while only 0.4 percent of respondents said they detransitioned after realizing transitioning wasn’t right for them.
The results of a 50-year survey published in 2010 of a cohort of 767 transgender people in Sweden found that about 2 percent of participants expressed regret after undergoing gender-affirming surgery.
The numbers are even lower for nonsurgical transition methods, like taking puberty blockers. According to a 2018 study of a cohort of transgender young adults at the largest gender-identity clinic in the Netherlands, 1.9 percent of adolescents who started puberty suppressants did not go on to pursue hormone therapy, typically the next step in the transition process.
Misinformation about the transition process
Stories about detransitioning often include misinformation not only about the prevalence of transition regret, but also about transitioning itself, according to transgender health experts and LGBTQ advocates. They say misconceptions about the gender transition process — including at what age different procedures are even considered — are widespread.
“We have people that are using media to educate themselves, and media is picking and mixing what they want to highlight and what they want to conflate or exaggerate,” Asquith said. “It’s incredibly unhelpful.”
Dr. Stephen Rosenthal, medical director for the University of California, San Francisco, Child and Adolescent Gender Center, said before the onset of puberty, there’s “no role” for medical intervention in a person who might be transgender, something that is not always made clear in media coverage.
For a child who has not yet reached puberty, trans health experts recommend seeking mental health support, because even prior to disclosing a gender identity that is different than the one they were assigned at birth, trans youth can experience symptoms including depression, social isolation and suicidal ideation. While medical guidelines advise that prepubescent children do not undergo hormone interventions, they state that allowing trans youth to “socially transition,” which can include taking on a new name and wearing a different style of clothing, can greatly benefit a child.
“It’s letting your child be themselves and loving them for who they are,” transgender advocate Gillian Branstetter said of the guidelines regarding children who haven’t reached puberty.
Once the child starts to experience puberty, health experts — including those at the U.K.’s National Health Service and the American Academy of Pediatrics — recommend a puberty blocker, as experiencing puberty when suffering from gender dysphoria can be traumatic for trans youth. With age, gender-expansive youth can explore other options such as gender-affirming hormones and surgery.
There have also been misconceptions surrounding the safety and lasting impact of nonsurgical transitioning steps, like puberty blockers. In September, a false news story linking the use of puberty blockers to “thousands of deaths” went viral, thanks in no small part to the signal boosting of right-wing media outlets like The Daily Wire.
Dr. Jack Turban, a resident physician in psychiatry at Massachusetts General Hospital who researches the mental health of trans youth, told NBC News that puberty blockers are actually a pretty low-risk way to provide care for gender dysphoric youth.
“Puberty blockers put puberty on hold so that adolescents have more time to decide what they want to do next. This is important because, while pubertal blockade is reversible, puberty itself is not,” he said. “It’s much more common to regret not getting puberty blockers than it is to regret getting puberty blockers.”
“With any intervention there are risks and benefits,” Turban said. “Are there risks to getting gender affirming care? Maybe. But are there risks for not getting gender affirming care? Definitely. And the risks of the latter usually outweigh the former.”
The consequences of misleading coverage
Advocates say that media coverage around transgender issues, and the public discourse it generates, can have a real-life impact on the lives of transgender people.
Branstetter, who as the former spokesperson for the National Center for Transgender Equality spent years speaking to the press and following coverage about transgender issues, said the media too often focuses on the “debate” over trans people’s validity, and does not pay enough attention to the struggles and joys of the trans experience.
“Decisions about newsworthiness are too often pinned to skepticism about trans people, or an assumption that your readers are more interested in whether trans people exist and not the actual experiences of trans people,” she said.
Asquith said coverage that questions the existence of trans identities can be particularly harmful to trans youth, an already vulnerable group that has an alarmingly high rate of attempted suicide and is subjected to disproportionately high rates of bullying and harassment. According to a 2017 National School Climate Survey by GLSEN, 44 percent of LGBTQ students reported feeling unsafe at school because of their gender expression.
“If one’s gender identity is different than that assigned at birth, if parents are being made to feel like that’s wrong,” Asquith said, “that is not OK.”
“The media need to take responsibility for that,” she added.
Misleading coverage has also provoked misguided policy proposals and political maneuvers disguised as genuine concerns for children’s health, according to LGBTQ advocates. Branstetter pointed to recent coverage about two Texas parents involved in a bitter divorce who disagreed over whether their 7-year-old is transgender. Following claims by the father that the child’s mother, a pediatrician, was trying to “chemically castrate” their child, Republican lawmakers in the state inserted themselves into the matter Gov. Greg Abbott ordered an investigation into the family, and Sen. Ted Cruz, R-Texas, went so far as to call parents who support their trans children “child abusers.”
Branstetter said that media coverage is tied to the bigotry that transgender people face in their daily lives. She pointed to the recently proposed bills in Texas, Georgia and Kentucky that would ban access to trans health care for minors, such as puberty blockers and hormone replacement therapy, and said that media coverage has played a large role in making anti-trans proposals like them politically fruitful.
“Those very proposals, should they be enacted into law, have a body count,” she said. “It would be restricting health care as prescribed by doctors, it would be people crossing state lines in order to get the health care they need. It would not merely destroy lives, it would end lives. And all of that is based on false myths about who trans people are and what our health care entails.”
‘Wedge issues’
Some advocates say the burst of detransition stories is just the latest in a cycle of media narratives that, intentionally or not, fuel misconceptions and stir up anti-trans sentiment.
Tea Uglow, creative director for Google’s Australia-based Creative Lab, is one of those advocates. Earlier this year, she debuted a project titled “Yours Sincerely, The Fourth Estate,” an archive of headlines and articles containing the word “transgender” from various U.K. and Australian news outlets between August 2018 and August 2019. Uglow told NBC News that stories about detransitioning and transition regret are the latest example of a broader trend.
“What is very obvious over the last few years is how there have been different wedge issues at different points, like the bathroom debatesand then this very interesting thing about trans women in sports,” Uglow said. “It’s a pernicious cycle.”
In 2016, following North Carolina’s reversal of a Charlotte city ordinance permitting transgender people to use bathrooms that align with their gender identity, the debate over which restroom trans people should use was covered widely, with some of the coverage veering transphobic. As recently as November 2018, the trans bathroom debate was still being used in political ads. More recently, a slew of national victories by transgender athletes prompted a call for trans women to be banned from participating in women’s sporting events over concerns that they would make the playing field uneven.
Less than one-quarter (24 percent) of Americans report having a close friend or family member who is transgender, according to the Public Research Religion Institute. This means for most people in the U.S. — and likely beyond — media coverage is the primary way they’re receiving information about the community. This is part of the reason Asquith said media outlets should be more aware of the impact their coverage could have on the trans community.
“It’s about media taking responsibility for the repercussions of the rhetoric that is out there,” Asquith said. “It is fueling hate.”
Turban has a prescription for those disseminating misleading information about trans people: Talk to the experts.
“What would be useful is if journalists and politicians reached out to doctors and physicians and researchers, people who actually know about this issue, rather than cisgender political pundits and people who don’t care for trans youth,” he said.
More than 50 LGBTQ, HIV and public health organizations have signed an open letter calling on Facebook to remove “factually inaccurate” advertisements placed by law firms that “suggest negative health effects” of HIV-prevention medication Truvada, a type of pre-exposure prophylaxis, or PrEP.
“The advertisements are targeting LGBTQ Facebook and Instagram users, and are causing significant harm to public health,” the letter states. “The law firms’ advertisements are scaring away at-risk HIV negative people from the leading drug that blocks HIV infections.”
The ads were bought by various law firms looking to use the platform’s targeted advertising capabilities to recruit gay and bisexual men for a class-action lawsuit against Gilead Sciences, the pharma giant that manufactures Truvada, a once-a-day pill that when taken regularly is 99 percent effective at preventing HIV transmission, according to the Centers for Disease Control and Prevention.
Courtesy of GLAAD
The open letter, signed by groups including ACT UP New York, amfAR and University of Chicago Medicine, claim the ads are misleading because they give the impression that PrEP may be generally harmful, when the side effects the ads warn against are primarily an issue with long-term treatment for people already living with HIV.
In a statement emailed to NBC News, a spokesperson for Facebook said the company values its “work with LGBTQ groups” and both welcomes and seeks out their input.
“While these ads do not violate our ad policies nor have they been rated false by third-party fact-checkers, we’re always examining ways to improve and help these key groups better understand how we apply our policies,” the spokesperson wrote.
‘Ambulance chasers’
The class-action lawsuit for which the law firms are trying to recruit clients was originally filed in May 2018 and claims patients who experienced certain side effects, including kidney damage and bone density loss, from Truvada could have avoided them had Gilead not intentionally delayed the release of a safer version of the drug, which it shelved in 2004.
Peter Staley, a longtime HIV activist and co-founder of PrEP4All, a coalition working to expand access and use of PrEP medications, said that he began seeing the advertisements on his own social media platforms in September and was immediately concerned.
“For the last six months, they’ve been targeting gay men on Facebook and Instagram with visuals about PrEP, the word PrEP and the blue pill, which is very iconic now for PrEP users,” Staley said. “They’re scaring the s—out of anybody who’s seeing them.”
Gay and bisexual men are likely being targeted because men who have sex with men comprise 70 percent of new HIV transmissions in the U.S. annually, according to the CDC.
Staley said the law firms that took up the case last year aren’t to blame for the misleading ads. Instead, he said, it’s the flurry of smaller “ambulance chasers” eager to get in on a potentially big payday.
“We think that they are causing hundreds of HIV infections, based on the reports that we’re getting from doctors. The clinics on the front line, they really say that these have a real impact,” he said.
‘A pretty significant chilling effect’
Demetre Daskalakis is the deputy commissioner of disease control at the New York City Department of Health and Mental Hygiene, and he also runs his own practice where he specializes in infectious diseases like HIV/AIDS. He told NBC News that he’s seen the impact of the ads first-hand, and that his colleagues across the country have, too.
Courtesy of GLAAD
“We’re all seeing and hearing the same thing, which is that this has a pretty significant chilling effect on trying to get folks on to pre-exposure prophylaxis, especially in communities that already have a baseline issue with medical trust,” Daskalakis said. “I’ve had my patients coming in to see me saying, ‘Hey, should we be switching me off of Truvada on to something else?’ It’s really frustrating.”
The U.S. is behind in the fight to prevent HIV using PrEP: Only about 18 percent of the 1.2 million Americans who might benefit from the medication actually received a prescription for it last year, according to a recent CDC report.
Staley said the reasons for this gap include the unusually high cost of the medication in the U.S. (about $2,000 for a 30-day supply), the lack of trust in the relatively new medicine and misinformation.
“Our worst nightmare is coming true, because these ads are definitely sending us back,” said Staley, who has been on the front-lines of the movement since the early days of the HIV/AIDS epidemic.
Politicians enter the controversy
Following the release of the open letter Monday, a number of lawmakers have joined the call for Facebook to remove the ads.
On Tuesday, New York Gov. Andrew Cuomo, a Democrat, issued a statement urging Facebook to remove the “deceptive” ads.
“Health officials and federal regulators have been clear that Truvada — or PrEP — is safe and effective,” it reads. “This ad campaign is putting New Yorkers in danger and jeopardizing the great strides our state has made in helping end the AIDS epidemic.”
That same day, presidential candidate Sen. Elizabeth Warren, D-Mass., took to Twitter to condemn the ads.
“Facebook is allowing entities to target misleading and false ads about HIV prevention drugs to LGBTQ+ communities and others. This can have serious public health consequences” she wrote. “Facebook needs to put the safety of its users above its own advertising profits.”
Signatories demand review of Facebook’s ad policies
GLAAD, the national LGBTQ advocacy organization that spearheaded the campaign to remove the controversial ads, is a member of Facebook’s Network of Support, a group of LGBTQ organizations that the social media giant consults on how to improve user experience. Rich Ferraro, GLAAD’s chief communications officer, said his organization initially tried to address the issue directly with Facebook but was met with resistance and an obtuse fact-checking system outsourced to third-party organizations.
“Facebook is clearly hiding behind their third party fact-checking agencies, but those agencies might not … have expertise in LGBTQ issues,” he said, adding that one of the fact-checking agencies, CheckYourFact.com, is part of The Daily Caller, an online outlet founded by right-wing pundit Ben Shapiro that has published a number of anti-LGBTQ articles and op-eds.
Ferraro said Facebook’s wide reach and targeted advertising capabilities make it even more important for the social media company to carefully vet the ads on its platform.
“This isn’t just an ad on a local news station or in a national newspaper,” he said. “The ambulance chasing law firms and the personal injury law firms behind these ads are able to target LGBTQ users and people who might be at risk for contracting HIV and who should be on PrEP.”
In addition to removing the ads, the open letter’s signatories are demanding that Facebook improve transparency with users — and the LGBTQ community in particular — around its policies for reviewing ads that contain potential misinformation. They are also asking the company to commit to a review of their current advertising policies “to prevent false or misleading public health statements from reaching users.”
Ferraro said he’s hopeful that Facebook will agree to the open letter’s demands, but he added that the fact that a public campaign was necessary at all is a troubling sign.
“This is one of the first public actions that GLAAD has taken against a social media company,” he said, noting that the organization’s work typically takes place “behind the scenes.”
“Social media is becoming home to anti-LGBTQ organizations and misinformation, and GLAAD is going to be holding them accountable in very public ways in the future,” he added.
