The rights of lesbian, gay, bisexual, transgendered, and queer (LGBTQ) students and teachers are not defined in any federal law and vary widely from state to state and school district to school district. Courts are often left to decide on a case-by-case basis where the rights of LGBTQ teachers and students begin and end. This topic holds relevance for educational law makers and policy makers and the many students and teachers in America’s schools who face discrimination based on their real or perceived sexual orientations and gender identities. This entry summarizes civil rights statutes and policies and discusses their impact on LGBTQ students and teachers.
State, Local, And District Policie
According to the Human Rights Campaign, eight states (California, Connecticut, Massachusetts, Minnesota, New Jersey, Vermont, Washington, and Wisconsin) and the District of Columbia prohibit sexual orientation discrimination in schools. Three states (California, Minnesota, and New Jersey) and the District of Columbia prohibit gender identity discrimination in schools. Private and religious schools are often exempted from such laws, as are the Boy Scouts of America, which uses public schools for meetings. Many state and district boards of education have policies prohibiting discrimination based on sexual orientation, but few explicitly prohibit discrimination based on gender identity, which would protect transgender students.
Five states (Alabama, Arizona, Mississippi, South Carolina, and Texas) prohibit any discussion of homosexuality in schools or mandate that homosexuality be referred to only in a negative manner (also known as No Promo Homo laws). The Utah State Board of Education prohibits the “advocacy” of homosexuality.
The most prominent court case serving as a wakeup call to school districts that antigay harassment must be taken seriously is Nabozny v. Podlesny (1996). Jamie Nabozny, an openly gay high school student who was tormented by his peers and severely beaten, sued several school administrators in federal court for failing to protect him from antigay peer abuse and was awarded $900,000. Jamie was treated differently not only because he is gay (sexual orientation discrimination) but also because he is male (sex discrimination). When he complained about the abuse, he was told to fight back, whereas girls who reported harassment were not told to fight back. Schools that discriminate on the basis of sex risk losing their federal Title IX funding.
Similar cases around the United States—for example, Henkle v. Gregory (2003), in which Nevada student Derek Henkle was awarded $451,000—are affirming the rights of LGBTQ students to safety and inclusion in America’s public schools. The increasing popularity of Gay-Straight Alliance (GSA) student clubs, and the lawsuits that result when districts try to prevent them, are also helping to define the rights of LGBTQ students.
Schools have the right to set dress codes in accordance with community standards, but in at least one case, Doe v. Brockton School Community (2000), the Court ruled that a school could not prevent an eighth grade male-to-female transgender student from wearing girls’ clothes. In Fricke v. Lynch (1980), a federal court ruled that students can bring same-sex dates to prom. With an emerging population of transgender middle and high school students, the courts may soon be ruling on their right of access to gender-neutral bathrooms and locker rooms, where the presence of ambiguously gendered students in the “boys” or “girls” bathroom or locker room could create an uncomfortable and threatening environment.
Changes in state civil rights laws, coupled with recent legal precedents strengthening individuals’ and employees’ rights to privacy and due process, are making it more difficult for school districts to dismiss teachers based solely on their sexual orientation. In California, Dawn Murray, a teacher who suffered harassment and discrimination because she is lesbian, was awarded $140,000, and her district was ordered to provide sensitivity training to its employees on issues of sexual orientation. Merrick v. Rio-Bravo Greeley Union School District (1999) and Kavanaugh v. Hemet Unified School District (2000) ruled that schools violated California state law banning discrimination based on sexual orientation when they transferred students out of certain teachers’ classrooms because those teachers were perceived to be gay.
Some districts are proactive and adopt policies, provide training, and support the rights of their LGBTQ teachers. In 2006, for instance, officials of Batavia School District near Rochester, New York, supported the right of a male-to-female transgender high school teacher to retain her job and held informational meetings for concerned parents. In 1999, however, Dana Rivers, a transgender high school teacher in Sacramento, California, was dismissed by her school board.
Previous case law has established that teachers cannot be fired for commenting on matters of public concern that are related to their school (in Letters to the Editor, for example) or because of their membership in various organizations. Likewise, LGBTQ teachers may be able to publicly comment on matters of public concern that have to do with sexual orientation and gender identity issues and their school, and they may be able to belong to LGBTQ organizations, but as of yet, there are no cases that address this. Likewise, just as heterosexual teachers “come out” to their students when they discuss their spouses and families, LGBTQ teachers may be able to be open about their sexual orientation, gender identity, partner, and families. But again, there are no cases that directly address these free speech issues, and as long as federal, state, and local laws and district policies do not explicitly prohibit discrimination based on sexual orientation and gender identity, LGBTQ student and teacher rights will remain ambiguous.
- Dealing With Legal Matters Surrounding Students’ Sexual Orientation and Gender Identity. Available from http://schoolhealth.nsba.org/site/docs/34600/34527.pdf
- Harbeck, K. M. (1997). Gay and lesbian educators: Personal freedoms, public constraints. Malden, MA: Amethyst Press.
- Lambda Legal, & Gay, Lesbian and Straight Education Network. (2008). A Guide to Effective Statewide Laws/Policies: Preventing Discrimination Against LGBT Students in K–12 Schools. Available from http://www.lambdalegal.org/our-work/publication/ protecting-lgbt-students-k-12.html
- Lambda Legal. (2008). Out, Safe, and Respected: Your Rights at School: Retrieved June 20, 2008, from http://www. lambdalegal.org/take-action/tool-kits/out-safe-respected
- Macgillivray, I. K. (2007). Gay-straight alliances: A handbook for students, educators, and parents. Binghamton, NY: Haworth.
- Sears, J. T. (Ed.). (2005). Youth, education, and sexualities: An international encyclopedia. Westport, CT: Greenwood Press.
- Gay, lesbian, bisexual, and transgender issues in education: http://www.IanMacgillivray.com
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