Feds protect gay youth thanks to pioneering activist-mom

What legal protections exist for glbt youth in schools?

Posted Jan 27, 2011

What legal protections exist for gay, lesbian, bisexual and transgender youth in schools? If there is no clear school policy or state law (like the one recently passed in New Jersey) do these students have any source of support? Thanks to the work of Carolyn Wagner, a pioneering activist-mom from Arkansas, glbt students in public institutions are protected by Title IX. Sadly, this brave leader for GLBT equality recently passed away after a battle with cancer. This blog post is written to thank her for the changes she initiated and to continue informing schools and education professionals about their legal and ethical responsibilities to prevent and respond to incidents of sex discrimination.

There has been recent controversy in the education community over the extent of Title IX protections in the wake of a "Dear Colleague" letter sent out to schools across the country this fall. In this letter, the Federal Department of Education's Office for Civil Rights informed school districts of their responsibilities in protecting students from bullying and harassment. These "letters of guidance" included several hypothetical scenarios to help schools clearly understand the full extent and application of Title IX. Some of the scenarios included in this 10 page letter gave examples of cyber-sexual harassment, anti-gay bullying, and harassment based on gender nonconformity. You can read more about the letter on the Title IX blog. However, groups like Citizenlink tried to generate controversy by arguing that the Obama administration is circumventing Congress by "extending" Title IX protections.

The truth is that Title IX has been used to protect students from discrimination based on sexual orientation since the 1999 decision in the Wagner v. Fayetteville Public Schools case. The parents were able to file suit under Title IX because in 1997, the OCR released guidelines explicitly including gay and lesbian students under sexual harassment protections. Since then, there have been several other cases in California (Ray v. Antioch Unified School District, 2000), Minnesota (Montgomery v. Independent School District No. 709, 2000), and Nevada (Henkle v. Gregory, 2001) where Title IX was applied to protect students from anti-gay harassment. In the Ray v. Antioch decision, the court's rationale is explained as follows:

"[T]he court finds no material difference between the instance in which a female student is subject to unwelcome sexual comments and advances due to her harasser's perception that she is a sexual object, and the instance in which a male student is insulted and abused due to his harasser's perception that he is homosexual, and therefore a subject of prey. In both instances, the conduct is a heinous response to the harasser's perception of the victim's sexuality, and is not distinguishable to this court." 107 F. Supp. 2d at 1170

Title IX has also been applied to cases of gender expression since 2005 due to a decision in the case Theno v. Tonganoxie.  In this case, the court wrote that "the plaintiff was harassed because he failed to satisfy his peers' stereotyped expectations for his gender because the primary objectives of plaintiff's harassers appears to have been to disparage his perceived lack of masculinity" (p. 952). The court concluded that the harassment was so, "severe, pervasive, and objectively offensive that it effectively denied (him) an education" (p. 966). The district settled the case for $440,000.

So, although some conservative groups are complaining that this letter is extending Title IX protections, this claim is false. This letter is simply informing and reminding schools of their duties that have already been established in case law. As the Title IX blogger succinctly stated, "In the end, OCR's guidance letter does not tell school officials anything they should not already know. After all, all of these responsibilities derive from existing agency and judicial interpretations of Title IX."

In summary, schools can be held responsible under Title IX if the following four criteria are met:

1)      School officials must have actual knowledge of the harassment

2)      School officials demonstrate deliberate indifference to harassment or take actions that are clearly unreasonable

3)      School officials have substantial control over both the harasser and the context in which the known harassment occurs

4)      The harassment is severe, pervasive and objectively offensive that it can be said to deprive the victim(s) of access to the educational opportunities of benefits provided by the school. (Davis v. Monroe, 1999)  

If you or your child is experiencing any form of sexual harassment in your school, and your school is not responding appropriately, you can contact local or national organizations to help. The ACLU, Lamba Legal, and the OCR all have a history of supporting students and families who find themselves in these difficult situations. You are not alone and the law is on your side.

For more reading on this topic:

Meyer, E. J., & Stader, D. (2009). Queer Youth and the Culture Wars: From the Classroom to the Courtroom in Australia, Canada, and the United States Journal of LGBT Youth, 6(2), 135-154.

 Rayside, D. (2008). Queer Inclusions, Continental Divisions: Public recognition of Sexual Diversity in Canada and the United States. Toronto: University of Toronto Press.

 Mayo, C. (2004). Disputing the subject of sex: Sexuality and public school controversies. Lanham, MD: Rowman & Littlefield.

 Bedell, J. (2003). Personal liability of school officials under § 1983 who ignore peer harassment of gay students. University of Illinois Law Review, 3, 829-862.