In schools all over the United States, students who are perceived
to be lesbian, gay, bisexual, or transgender are exposed to daily instances of
discrimination- whether they be in the form of harassment, bullying,
cyber-bullying, intimidation, or even in some cases violence. While there do exist federal protections that
address discrimination based on race, color, nationality, sex, and disability,
there are none that protect students against discrimination specifically on the
basis of sexual orientation or gender identity.
Despite a general lack of federal protection for LGBT students subjected
to discrimination in schools, substantial progress has been made on a
state-by-state basis in terms of passing legislation and imposing regulations
that protect LGBT students from harassment/discrimination. The Gay, Lesbian and
Straight Education Network (GLSEN), for instance, reports that overall there
have been significant positive changes in school climate for LGBT youth since
2001.
Below, I have compiled a list of some of the federal and
state protections currently in place (or proposed). This information comes primarily from reports
issued by the National Center for Lesbian Rights, the Gay, Lesbian and Straight
Education Network (GLSEN), and Lambda Legal. At the bottom of this post, I have
attached a link to a webpage that shows which states have/have not enacted
anti-bullying and anti-discrimination laws, as well as which states have initiated
“no promo homo” laws.
Federal Protections:
- Equal Protection Clause of the 14th Amendment. This ensures that all students have a constitutional right to equal protection under the law. Public schools are legally obligated to protect lesbian, gay, bisexual, and transgender students from any form of harassment and/or discrimination, as they would any other student. A school fails to provide equal protection to a student if: officials fail to take action against anti-LGBT harassment because they believed the LGBT student brought upon the harassment by virtue of being openly LGBT, or because they believed that the LGBT student should have expected to be discriminated against, or because the school was uncomfortable addressing the situation due to a lack of knowledge about LGBT issues and/or appropriate protocol in dealing with a case of anti-LGBT harassment.
- Title IX. Title IX, part of the Education Amendment Acts of 1972, prohibits sex and gender discrimination in education programs – both public and private – that receive federal financial assistance. It does not explicitly prohibit discrimination on the basis of sexual orientation, gender identity, or gender expression; however, it does prohibit sexual harassment directed toward an LGBT student “if it is sufficiently severe and pervasive.” Additionally, Title IX protects gender non-conforming students by prohibiting gender-based harassment.
- 1st Amendment, Equal Protection & Due Process Clauses. The 1st Amendment of the U.S. Constitution restricts the right of school officials to stifle any student’s speech or expression. Under the Equal Protection Clause, transgender students have the right to be treated equally to other students of the same gender identification. Under the Due Process Clause, students “have a protected liberty interest in their personal appearance.” The 1st Amendment, the Equal Protection Clause, and the Due Process Clause, therefore, uphold the transgender student’s right to dress in whichever way he/she feels is congruent with his/her gender identity. This means that schools may not impose, for instance, a dress code on a female-to-male transsexual that differs from the one imposed on biological males.
- The Student Non-Discrimination Act(SNDA) is a proposed federal bill intended to remedy the inconsistency in federal protection for LGBT students by explicitly prohibiting public schools from discriminating against any student based on his/her perceived sexual orientation or gender identification. Unlike state anti-bullying laws, the SNDA would enable the federal government to penalize schools for bullying infractions by extracting its funding. In addition, it would give victims of discrimination the ability to pursue legal recourse against school districts. U.S. Secretary of Education Arne Duncan recently issued a public statement commending the SNDA; however, the legislative prospects of the bill are currently undetermined given the polarized nature of Congress.
State Protections
- As of 2009, about half of the states in the U.S. have addressed harassment and/or discrimination based on sexual orientation in the form of regulation, policy implementation, or the enactment of public statuses.
- “Safe School Laws” refer to those that protect LGBT students in schools throughout the U.S. GLSEN identifies two different types of “Safe School Laws”: anti-bullying laws and non-discrimination laws.
- Anti-bullying laws are laws that specifically protect students from bullying and harassment on the basis of sexual orientation and gender identity. Currently, fifteen states have implemented anti-bullying laws: Arkansas, California, Colorado, Connecticut, Illinois, Iowa, Maine, Maryland, New Jersey, New York, North Carolina, Oregon, Rhode Island, Vermont, and Washington.
- Non-discrimination laws protect LGBT students from instances of discrimination in schools. There are some non-discrimination laws that protect students from discrimination on the basis of sexual orientation AND gender identity. There are also states – like Wisconsin – that protect students from discrimination based on sexual orientation, but not based on gender identity.
- No Promo Homo (featured above..) laws are those that explicitly prohibit educators from “discussing gay and transgender issues (including sexual health and HIV/AIDS awareness) in a positive light-if at all.” There are even laws that obligate teachers to intentionally represent LGBT people in a negative way. Currently, 8 states have no promo homo laws: Alabama, Arizona, Louisiana, Mississippi, Oklahoma, South Carolina, Texas, and Utah.
Hey Emma- thanks for posting this! I find your post particularly interesting because it is related to some of the research that I've been doing for my thesis, which is about dress codes in high school and the norms they promote in terms of sexuality and gender. I've found that while dress codes can't legally create separate rules for girls and boys, students are expected to conform to gender expressions that reflect their biological sex. While crossdressing is not explicitly banned at most schools, it is often an unspoken rule which is still enforced by school administrators. I think that dress codes are an interesting aspect of the education system because in the above example, we see discrimination by the administration, rather than the students.
ReplyDeleteBelow is a link to the story of a student, Caera Sturgis, whose picture wasn't printed in her school's yearbook because she chose to wear a tuxedo (what boys were supposed to wear) for the picture instead of the tradition drape that girls are supposed to wear.
http://www.msmagazine.com/news/uswirestory.asp?id=12591