When I was a freshman in high school, I was escorted from class into the school psychologist’s office. I was the last of four of us to arrive. The four of us being, “the lesbians.” One of the girls was my girlfriend at the time; the other two girls were our good friends, who were also in a relationship. The school psychologist, who was joined by the vice principal sat us down and informed us that the school had received a parental complaint about all of us regarding public displays of affection. We were informed that these public displays of affection violated the school’s code of conduct, and unless we stopped being “inappropriate,” all of our parents would be notified.
The despicable, inappropriate, PDA that the complaint was referring to was our unbelievably graphic handholding, and hugging. Oh, and the other couple used to sit on each other’s laps outside after school. It didn’t matter that all of us weren’t equally involved in these horrendous offenses; we were all dating someone of the same gender, and therefore seen as equally guilty. It also didn’t matter that specific codes of conduct were not equally applied to the school’s straight couples.
We sat there pleading with them not to tell our parents. Our reactions, and the fact that none of our parents knew, only reinforced their threat. The psychologist was very understanding of our anxiety regarding the possibility of being outed to our parents, expressing we were lucky to have gotten a warning. She stated, “Like a sexy top, if a girl comes in wearing it we’ll tell her not to do it again. If she wears it again, we call home.” The vice principal then informed us security had been notified of the discussion, and would be reporting us if necessary. Shockingly, administration had a change of heart when an outraged teacher got the American Civil Liberties Union (ACLU) involved.
Unfortunately, in many cases students are unaware that they are entitled to certain legal protections. In some circumstances, administrators are also unaware. However, sometimes administrators are aware of existing laws and protections, and choose to ignore them, figuring that students will not realize their rights are being violated. Additionally, most legal protections only extend to students in schools that receive federal funding, which jeopardizes the well being of LGBTQ students in private schools.
The despicable, inappropriate, PDA that the complaint was referring to was our unbelievably graphic handholding, and hugging. Oh, and the other couple used to sit on each other’s laps outside after school. It didn’t matter that all of us weren’t equally involved in these horrendous offenses; we were all dating someone of the same gender, and therefore seen as equally guilty. It also didn’t matter that specific codes of conduct were not equally applied to the school’s straight couples.
We sat there pleading with them not to tell our parents. Our reactions, and the fact that none of our parents knew, only reinforced their threat. The psychologist was very understanding of our anxiety regarding the possibility of being outed to our parents, expressing we were lucky to have gotten a warning. She stated, “Like a sexy top, if a girl comes in wearing it we’ll tell her not to do it again. If she wears it again, we call home.” The vice principal then informed us security had been notified of the discussion, and would be reporting us if necessary. Shockingly, administration had a change of heart when an outraged teacher got the American Civil Liberties Union (ACLU) involved.
Unfortunately, in many cases students are unaware that they are entitled to certain legal protections. In some circumstances, administrators are also unaware. However, sometimes administrators are aware of existing laws and protections, and choose to ignore them, figuring that students will not realize their rights are being violated. Additionally, most legal protections only extend to students in schools that receive federal funding, which jeopardizes the well being of LGBTQ students in private schools.
Privacy
According to the ACLU, the outing of an individual by school personnel violates the Fourth Amendment rights to privacy. The ACLU supports this claim, citing an instance in 1997 when an adolescent commit suicide after police informed him they were going to disclose his sexuality to his parents. However, more recently in 2013 the Court of Appeals for the Fifth Circuit (a federal court with jurisdiction over courts in parts of LA, MS and TX) ruled that issues relating to sexuality are not protected by the Fourth Amendment, following an instance where a sixteen year old’s sexuality was disclosed to her mother by her high school’s softball coaches. There is a discrepancy over what specific protections exist for LGBTQ students under the Fourth Amendment, however it is the job of teachers to empower all of their students, and therefore be knowledgeable about these issues and the resources available. In these circumstances, the ACLU urges students to defend themselves by contacting an their local ACLU affiliate, or the ACLU LGBT Project.
Protecting LGBTQ students from involuntary outing is enormously important for a number of reasons. Many people have very valid reasons for not coming out, or waiting for a specific time to do so. A 2012 study conducted by the Williams Institute found that 40% of homeless youth identify as LGBTQ. The study found that LGBTQ youth become homeless because they are often forced out of their homes and rejected by their families. This is just one example out of the many possible negative outcomes LGBTQ youth who are put at risk for when they are outed. Schools are supposed to protect the health and safety of their students, not endanger it.
Protecting LGBTQ students from involuntary outing is enormously important for a number of reasons. Many people have very valid reasons for not coming out, or waiting for a specific time to do so. A 2012 study conducted by the Williams Institute found that 40% of homeless youth identify as LGBTQ. The study found that LGBTQ youth become homeless because they are often forced out of their homes and rejected by their families. This is just one example out of the many possible negative outcomes LGBTQ youth who are put at risk for when they are outed. Schools are supposed to protect the health and safety of their students, not endanger it.
Equal Access
Another issue for LGBTQ youth involving school administration is the reluctance to grant permission for clubs such as Gay Straight Alliances (GSA). Clubs such as GSAs are an asset for a number of reasons. Unfortunately students (and teachers) have repeatedly faced significant difficulties in getting approval for club formation and activities that events that are often part of them, such as the Day of Silence, or Ally Week.
Although my high school technically had a GSA my freshman year, it was inactive. When a group of us tried to organize a Day of Silence without the support of a club, we were told by administration that we would have to wait until after our Middle States Accreditation observations were finished. The administration did not want the observers from the Middle States commission to get the wrong idea… I’m not even going to begin to unpack that.
Although my high school technically had a GSA my freshman year, it was inactive. When a group of us tried to organize a Day of Silence without the support of a club, we were told by administration that we would have to wait until after our Middle States Accreditation observations were finished. The administration did not want the observers from the Middle States commission to get the wrong idea… I’m not even going to begin to unpack that.
§4071 of Title 20 of Education Law, “The Equal Access Act,” declares that it is illegal for a public school (or an institution receiving federal funding) that has “noncurriculum related student groups,” to prohibit the meeting of any group based on “religious, political, philosophical, or other content.” This means that if a public school has any club that is not related to the curriculum of a specific class, they legally cannot prohibit other student groups from forming and meeting on school grounds. Additionally, all clubs are supposed to have equal access to privileges such as bulletin board space and PA system usage (Lambda Legal). For issues with administration pertaining to forming a GSA, students and school personnel are encouraged to first discuss “The Equal Access Act” with school administration, and if problems persist, to contact the ACLU or Lambda Legal for additional support.
Equal Protection
I expressed a certain amount of dismay regarding the effectiveness New York’s DASA laws in an earlier blog. We know that LGBTQ students are subjected to harassment, bullying, and physical harm at alarming rates, which not only (as DASA focuses on), interferes with their academic achievement, but endangers their overall well-being and safety. Many of the specific protections against bullying and harassment are state specific. This means that different types of discrimination and harassment are not disciplined equally. Some laws do not explicitly prohibit discrimination on a basis of sexuality. However, on the federal level, Title IX of the Education Amendments requires schools to respond to discrimination based on sex in educational institutions. Title IX aims to eliminate hostile educational environments by addressing issues of sexual violence, discrimination against pregnant students and discrimination against women in STEM programs. It also protects students against discrimination based on “real or perceived sex” which provides legal protection for transgender students, as well as students who are victimized because of their gender expression (Know Your IX).
Teachers and school personnel should be familiar with the existing laws that address discrimination and bullying in their states, and act on them accordingly. In order for the protections of Title IX to be utilized, all instances of harassment and discrimination must be reported and documented. Students should be made familiar with the laws and regulations to enable them to better defend their rights. Additionally, Title IX, which has very specific enforcement guidelines, requires complaints regarding enforcement to be reported to the DOE. When institutions violate Title IX, instances of sex based discrimination become grounds for legal action (Know Your IX).
Too often, disciplinary actions taken by schools are inconsistent. Schools must be held accountable for providing equal protection for students, whether or not they are required to do so legally. While the existence of certain laws and regulations may provide some motivation for schools, ethical obligations concerning the well being of students alone should provide sufficient motivation for all.
Teachers and school personnel should be familiar with the existing laws that address discrimination and bullying in their states, and act on them accordingly. In order for the protections of Title IX to be utilized, all instances of harassment and discrimination must be reported and documented. Students should be made familiar with the laws and regulations to enable them to better defend their rights. Additionally, Title IX, which has very specific enforcement guidelines, requires complaints regarding enforcement to be reported to the DOE. When institutions violate Title IX, instances of sex based discrimination become grounds for legal action (Know Your IX).
Too often, disciplinary actions taken by schools are inconsistent. Schools must be held accountable for providing equal protection for students, whether or not they are required to do so legally. While the existence of certain laws and regulations may provide some motivation for schools, ethical obligations concerning the well being of students alone should provide sufficient motivation for all.
Freedom of Speech/Expression
Since Title IX provides protection against discrimination based on gender expression, and the First Amendment provides individuals with the right to free expression, students legally have the right to wear clothing consistent with their gender identity, rather than sex assigned at birth. Students’ clothing should only be restricted when it is not complaint with school dress codes (another interesting point of debate), which should be gender neutral. This right has been upheld by in courts numerous times (SPLC).
According to the ACLU, schools are only entitled to restrict students’ freedom of speech and expression in circumstances where a students’ expression causes significant disruption, or is obscene. As a result, students are entitled to participate in events such as the Day of Silence, symbolically express political beliefs and opinions, bring a student of the same sex/gender to prom and other school events, be open (if they chose to do so) regarding their sexuality and gender.
The rights LGBTQ students are often illegally violated by public schools. The best way to prevent this from continuing is to be aware of their rights, and to make them aware of their rights. When confronting a noncompliant administration with these issues it is best to be objective and well informed. When this approach fails, there are numerous legal resources fully devoted to protecting civil rights that will provide support. In many cases, school districts have faced serious legal consequences for illegally violating students’ rights. However, without the necessary support or empowerment, the unequal treatment of LGBTQ students will continue.
According to the ACLU, schools are only entitled to restrict students’ freedom of speech and expression in circumstances where a students’ expression causes significant disruption, or is obscene. As a result, students are entitled to participate in events such as the Day of Silence, symbolically express political beliefs and opinions, bring a student of the same sex/gender to prom and other school events, be open (if they chose to do so) regarding their sexuality and gender.
The rights LGBTQ students are often illegally violated by public schools. The best way to prevent this from continuing is to be aware of their rights, and to make them aware of their rights. When confronting a noncompliant administration with these issues it is best to be objective and well informed. When this approach fails, there are numerous legal resources fully devoted to protecting civil rights that will provide support. In many cases, school districts have faced serious legal consequences for illegally violating students’ rights. However, without the necessary support or empowerment, the unequal treatment of LGBTQ students will continue.
Resources
ACLU Letter on Student Privacy
Lambda Legal's Out, Safe & Respected
Freedom of Speech/Expression Q&A
GLSEN: Trans Students Rights
GSA Network: Legal Resources
Lambda Legal's Out, Safe & Respected
Freedom of Speech/Expression Q&A
GLSEN: Trans Students Rights
GSA Network: Legal Resources
Works Cited
20 U.S. Code Chapter 52, Subchapter VIII - §407, “The Equal Access Act” Bolger, Dana. Title IX: The Basics. Know Your IX, n.d. Web. 11 Dec. 2014. <http://knowyourix.org/title-ix/title-ix-the-basics/>.
"Coaches Who Outed Gay Student Did Not Invade Her Privacy, Court Rules." Huffpost 7 June 2013. Web.
Durso, L.E., & Gates, G.J. (2012). Serving Our Youth: Findings from a National Survey of Service Providers Working with Lesbian, Gay, Bisexual, and Transgender Youth who are Homeless or At Risk of Becoming Homeless. Los Angeles: The Williams Institute with True Colors Fund and The Palette Fund.
Know Your Rights! A Guide for LGBT High School Students. American Civil Liberties Union, 24 Nov. 2014. Web. 11 Dec. 2014.
Lhamon, Catherine E. "Questions and Answers on Title IX and Sexual Violence." United States Department of Education. Office for Civil Rights, 29 Apr. 2014. Web. 11 Dec. 2014.
LGBT Rights. American Civil Liberties Union, n.d. Web. 11 Dec. 2014. <https://www.aclu.org/lgbt-rights>.
"Out, Safe and Respected: Your Rights at School." Lambda Legal. Lambda Legal, 2008. Web. 11 Dec. 2014. <http://www.lambdalegal.org/publications/out-safe-respected>.
Students: Know Your Rights. Southern Poverty Law Center, n.d. Web. 11 Dec. 2014.
Students Rights -- Free Speech. American Civil Liberties Union of Vermont, n.d. Web. 11 Dec. 2014. <https://acluvt.org/pubs/students_rights/speech.php>.
"Coaches Who Outed Gay Student Did Not Invade Her Privacy, Court Rules." Huffpost 7 June 2013. Web.
Durso, L.E., & Gates, G.J. (2012). Serving Our Youth: Findings from a National Survey of Service Providers Working with Lesbian, Gay, Bisexual, and Transgender Youth who are Homeless or At Risk of Becoming Homeless. Los Angeles: The Williams Institute with True Colors Fund and The Palette Fund.
Know Your Rights! A Guide for LGBT High School Students. American Civil Liberties Union, 24 Nov. 2014. Web. 11 Dec. 2014.
Lhamon, Catherine E. "Questions and Answers on Title IX and Sexual Violence." United States Department of Education. Office for Civil Rights, 29 Apr. 2014. Web. 11 Dec. 2014.
LGBT Rights. American Civil Liberties Union, n.d. Web. 11 Dec. 2014. <https://www.aclu.org/lgbt-rights>.
"Out, Safe and Respected: Your Rights at School." Lambda Legal. Lambda Legal, 2008. Web. 11 Dec. 2014. <http://www.lambdalegal.org/publications/out-safe-respected>.
Students: Know Your Rights. Southern Poverty Law Center, n.d. Web. 11 Dec. 2014.
Students Rights -- Free Speech. American Civil Liberties Union of Vermont, n.d. Web. 11 Dec. 2014. <https://acluvt.org/pubs/students_rights/speech.php>.