公立中小學教師可以在課堂上教同志議題嗎？美國聯邦法院判決對臺灣的啟示

Can public school teachers talk about LGBTQ issues to their students? The Implication of the U.S. Federal Circuits decisions for Taiwan

儘管2015年美國聯邦最高法院判決保障同性婚姻，各州仍陸續通過禁止或限制在公立中小學討論同志議題的「禁止宣傳同性戀」法（“No Promo Homo”law）。為了和學生討論同志議題，教師需要憲法第一修正案的保護，以防止學校可能解僱或不續聘教師。然而，聯邦最高法院在Garcetti v. Ceballos（2006）一案提到，公職人員「基於職責」所發表的言論，不受憲法第一修正案的保障，聯邦巡迴法院也採取此標準來判斷中小學教師在課堂上的言論，從而削弱了教師的言論自由權。
反觀臺灣，性別平等教育相關議題始終爭論不休。我國憲法第十一條明文列出人民有講學自由，由此可導引出中小學教師的教學自由，由此看來，教師能在課堂上討論多元性別議題，並有選擇適切的性平教材的權利。本研究探討美國聯邦法院判決發展及「禁止宣傳同性戀」法之影響後，發現其對臺灣的啟示如下：一、建構多元包容的課堂環境。二、落實保障中小學教師教學自由。三、持續進行性別平等教育。

This paper will proceed in four parts. Part I discusses the current approaches to analyzing curricular speech under the Free Speech Clause. Federal circuit courts have applied three distinct doctrinal approaches to determine whether the First Amendment’s Free Speech Clause protects curricular speech:1.the the Pickering-connick approach, which protects speech made by a public employee when speaking as a citizen on a matter of public concern; 2.the Hazelwood test, which states that schools can restrict educators’speech based on a legitimate pedagogical concern; and 3. the Garcetti test, which finds all speech made pursuant to a government employee’s official duties as outside the scope of the First Amendment.
Part II outlines Evans-Marshall v. Bd. of Educ. of Tipp City Exempted Vill. Sch. Dist., the Sixth Circuit examined the constitutionality of certain curricular choices by a high school English teacher. Among her assignments was a censorship-themed review of a book that students would select from a list that included Heather Has Two Mommies. The court laid out a three-pronged test to assess the teacher’s First Amendment claims, ultimately ruling that she had passed the first two but failed the third.
Part III proposes These anti-gay curriculum policies in sex education pose serious consequences to students and educators alike. The Court has found that these laws specifically seek to“injure”the LGBTQ student population. There are also serious consequences, such as the gap in sex education for students, a misunderstanding of the LGBTQ community by heterosexual students, and the challenge for educators to follow these laws. Part IV concludes Taiwan has three lessons to learn from the U.S. Federal Circuits decisions.