Protecting the Legal Rights of LGBTQ Students in Schools
Until recently, many of us thought that the legal rights of LGBTQ students were established. In 1996, conservative Justice Anthony Kennedy opined that a Colorado effort to repeal state laws the provided protections for gay and lesbian men and women was unconstitutional. In 2008, the U.S. Supreme Court effectively established the fundamental right to marry for same-sex couples—a watershed moment for equal rights in our history.
It seemed, until recent events, the march toward equal rights under the law for all—including LGBTQ students—could only go forward.
Times have changed.
Efforts to Restrict Rights
Today, many state legislators and local school boards have attempted to restrict the rights of LGBTQ students.
In 2021 and 2022, for example, Alabama (and other states) passed laws and policies that discriminate against transgender students for participating in sports or using the bathroom that aligns with their gender identity.
Other states have passed laws with the stated—but dubious—intention to prevent schools from “indoctrinating” students.
But state (and federal) legislatures cannot make the rules without some oversight. For now, we have a system of checks and balances. Other sources of law and branches of government can—and do—provide legal protections for the rights of LGBTQ students.
Sources of Law to Protect LGBTQ Students
Why is this important to you as school leaders? One—if not the—most important duty you have is to ensure students feel safe in your school and promote values of tolerance and appreciation of diversity, which are decidedly American concepts. You already know that, but stating it reminds us of your important place in ensuring our democracy through public education.
Toward that end, it is worth highlighting some important sources of law that (at least as of now) provide some means for you to meet this duty. While I outline the basics, I call your attention, specifically, to my discussion about the Equal Access Act and local school board policies that allow non-curricular groups space and time to meet in a school facility.
First, there is the U.S Constitution. Under the First Amendment, students have protections related to their speech and expression, including expression related to their identity through their words or even clothes (assuming there is no reasonable dress code).
At the same time, students who might attempt to harass students because of their identity—and then claim they have a “right to free speech”—are prohibited from doing so.
The 14th Amendment of the Constitution also provides some protections. The Equal Protection Clause of that Amendment prohibits schools from treating students differently, and students must feel safe in schools. Students also have a constitutional right to privacy.
Federal statutes might provide protections for student rights, too, including (for the moment) Title IX. In 2021, the Supreme Court refused to hear (and potentially overturn) a court case in which a student successfully challenged a school district’s discriminatory “bathroom ban” on grounds it violated Title IX and the Equal Protection Clause. We should proceed cautiously about seeing Title IX as a long-lasting remedy, without further congressional amendments, as the Supreme Court may change its view on how far Title IX can be used.
One important federal statute—the Equal Access Act—can be used by students and advocacy groups to ensure that your school can provide a safe space for LGBTQ allies and students. In brief, the act bars schools receiving federal funds from prohibiting a student group from meeting during non-instructional time at a school because a school district or official disagrees with the viewpoint of the group.
Importantly, while this act applies specifically to secondary schools (which might include middle grades in some states or districts), many school districts have used it (and constitutional principles) to develop local facility access policies for use of all its schools by the public.
In practice, what does this mean for you, as a school leader? Basically, if you allow different groups to use your facility (in legalese, creating a “limited public forum”), you cannot discriminate against a group because of their religious or political belief.
For example, if the “Students and Citizens for Atheism” group uses school space during non-instructional time (e.g., before, after school, or perhaps during lunch), then you must allow the “Students and Citizens for God” (both hypothetical groups) the same access.
Thus, groups that create safe spaces for students LGBTQ students and their allies, such as LGBTQ Alliance groups, may be able to meet in your school. I am simplifying, but the advice is this: Check your school and district’s facility use policy to see if your school may be used by groups that provide appropriate support for LGBTQ students and allies. In addition to providing support for students, these groups have had success holding important public forums that foster appreciation of diversity and unity.
State and Local Laws
State laws also protect students. They vary by state, but many have anti-discrimination laws that protect teachers, as well as students.
In addition to the local school facility policies highlighted above, school boards have adopted policies that are intended to prevent discrimination, bullying, and harassment.
I would be lying to you if I said I wasn’t worried. The spate of recent laws passed that discriminate or promote intolerance are anachronistic to the foundational principles of our democracy, such as the faith in protecting individual liberties.
But I am also hopeful. Efforts to discriminate against students’ rights based on gender or identity only remind us that our work is not done. And, thankfully, we still have some federal and state laws that can help us.
Mark Paige is a former school law attorney who represented school districts in federal and state legal matters and current department chair and professor of Public Policy at the University of Massachusetts-Dartmouth.