LGTBQ Diversity Toolbox for Adminstrators Legislation and Legal Cases

Discrimination and harassment have prompted legislation and litigation that administrators and teachers can reference to both guide and support their actions in schools. The following annotated list of relevant legislation, recent Office of Civil Rights (OCR) complaints, and sampling of legal cases may provide cautions and possible strategies to provide school climates that support the safety and well-being of gifted LGBTQ students:

Legislation

• Equal Protection Clause of the 14th Amendment to the U.S. Constitution (1868):  Public schools have an obligation to protect students from harassment and discrimination based on their sexual orientation. Federal courts have since ruled that public schools have an obligation under this clause to protect LGBT students from harassment on an equal basis with all other students. If school officials fail to stop anti-gay harassment or violence, the school can be held liable for failing to provide equal protection for that student (National Center for Lesbian Rights, 2011).
• Title IX of the Education Amendments Act (1972): This act guarantees equal educational opportunities for all students regardless of gender. It does not protect LGBT students from harassment based on their sexual orientation, but does protect all students based on gender nonconformity. It requires school administrators to intervene in and remediate any harassment “of a sexual nature” severe enough to prevent a LGBT student’s access to or enjoyment of any school program (Cianciotto & Cahill, 2003). In 2014, OCR issued a Q & A document that clarified Title IX’s application to non-vocational single-sex classes and extracurricular activities, including assigning transgender students consistent with students’ gender identity (U.S. Department of Education Office for Civil Rights, 2016).
• Equal Access Act (1984): Schools cannot deny equal access to student activities because of “religious, political, philosophical, or other content of the speech at such meetings.” (20 U.S.C. § 4071 a). This act provided legal standing for the formation of gay-straight alliances in all public schools that allow any other school-sponsored clubs (Cianciotto & Cahill, 2003).

OCR Complaints

The following complaints resulted in actions that were put in place after intercession from the OCR:

• Downey Unified School District (2014): Downey Unified School District employees subjected a transgender girl to harassment, different treatment when compared to her peers, and failed to provide a prompt and equitable response to a harassment notice. Even though other female students in the district were allowed to wear makeup, staff confiscated the student’s makeup and forced her to write a letter apologizing for making male students uncomfortable by wearing makeup. Staff also discouraged her from speaking about her gender identity and ended her participation in on campus group counseling sessions based on concern that she might discuss her gender identity. A district administrator responded to frequent peer verbal harassment by recommending transfer to another school. After OCR intervention, the district revised its policies, procedures, and regulations to ensure all students, including those who did not conform to sex stereotypes, were provided equal opportunity to participate in all programs and activities. They conducted mandatory training for administrators on gender nonconformity and gender-based harassment, and conducted annual parent and student climate surveys to evaluate bullying and harassment prevention efforts. The district worked with a child and adolescent gender identity consultant to ensure appropriate implementation of the resolution agreement and to treat the transgender student the same as other female students, including access to female-designated facilities. They also agreed the student would not be disciplined for acting or appearing in a non-stereotypical masculine or feminine manner (U.S. Department of Education Office for Civil Rights, 2016).
• John Doe School District #2 (2015): District staff members refused to respond to repeated slurs and name-calling of a student who did not conform to male gender stereotypes. After OCR intervention, the district revised its Title IX grievance procedures and notice of nondiscimination. They conducted campus climate checks and developed an annual training program for all district personnel and a plan to educate high school students and parents about sexual and gender-based harassment (U.S. Department of Education Office for Civil Rights, 2016).
• John Doe School District #3 (2015): A male student was called “gay,” derided as not having “male parts,” and had his pants pulled down at school. After OCR intervention, the district revised its Title IX policies and procedures and committed to monthly check-ins with the affected student to determine if further sexual harassment occurred. If so, prompt action would be taken. They provided annual training to all district administrators, faculty, and relevant staff as well as age-appropriate training for all students regarding the revised sexual harassment policies and procedures (U.S. Department of Education Office for Civil Rights, 2016).
• John Doe School College (2015): While this case is applicable to colleges, it could have implications for school districts who may require gender-neutral restrooms or who discipline students due to gender nonconformity, and highlights the relationship to Title IX. The college required a transgender student to provide documentation to verify her gender, suspended her from college, prohibited her from completing work missed during the suspension, forced her to use gender-neutral restrooms, and prohibited her from filing a Title IX complaint. The college revised its Title IX complaint resolution procedure, communicated to students their right to use whichever bathroom coincided with their gender identity, and informed them that it was not necessary to change official records to be addressed by the name or gender of their choice. They trained all staff on gender-based discrimination/harassment and on coverage of transgender students under Title IX. They also expunged the student’s records of any disciplinary action related to the complaint, provided her with copies of all updated policies, publications, and training materials related to Title IX violations and gender-based discrimination or harassment, and allowed her to retake or be reimbursed for courses enrolled in while under suspension (U.S. Department of Education Office for Civil Rights, 2016).

Legal Cases

• Flores v Morgan Hill USD (2003): Six students from two Arizona middle schools and one high school were subjected to daily harassment, threats, and physical violence on the basis of their actual or perceived sexual orientation or gender identity/expression. The district ignored or minimized anti-gay harassment (physical assaults, anti-gay name-calling, anti-gay vandalism, anti-gay rumors) against six LGBT students over a seven year period, in spite of complaints filed by these students. Some school employees participated in the abuse. For example, a bus driver allowed attackers to board a bus and left the 7th grade victim lying on the ground at the bus stop; school officials ignored or minimized anti-gay harassment, disciplined or chastised victims of anti-gay harassment, etc. Settlement in 2004: $1.1 million, which included $150,000 for one student, $100,000 each for two students, $80,000 each for two students, $50,000 for one student, and $540,000 for costs and students’ attorneys. Injunctive Relief (court-ordered act or prohibition against an act or condition): Establishment of a comprehensive training program for administrators, staff, and students to combat anti-gay harassment as well as revision of anti-harassment policies and to keep written records of harassment complaints.
• Theno v. Tonganoxie USD, No. 464 (2005):  A student was severely bullied due to a perceived lack of masculinity during middle and high school, prompting him to drop out. Harassment included name-calling, teasing, and gestures with sexual undertones. A teacher laughed at a vulgar statement made while he was walking with his teacher. On another occasion, another student convinced a teacher to call him “banana boy.” Jury Verdict: $250,000; judge also awarded $270,000 in attorneys’ fees.
• Donovan v. Poway Unified School District (2008): School officials took little/no action in response to anti-gay harassment (death threats, being spit on, and anti-gay epithets) of a male and female student by peers. Both students dropped out of school and completed their senior years through independent study. Jury verdict: $300,000 to the two students; judge awarded $421,357 for attorneys’ fees.
•  J. L. v. Mohawk Central School District, No. 9 (2009): A student was subjected to harassment (name-calling, physical threats, and violence) because he did not conform to gender stereotypes in both behavior and appearance. He had dyed his hair, wore makeup and nail polish, exhibited feminine mannerisms, and had predominantly female friendships. Settlement: $50,000 plus $25,000 for attorneys’ fees. Injunctive Relief: The district: (a) Retained a consultant with expertise in harassment and discrimination based on sex, gender identity, gender expression, and sexual orientation to review the district’s policies and procedures; (b) developed and implemented a comprehensive plan for disseminating harassment and discrimination policies and procedures; (c) retained an expert consultant to conduct annual discrimination and harassment training based on sex, gender identity and expression, and sexual orientation; (d) maintained harassment responses records for five years; and (e) provided annual compliance reports to the OCR and private plaintiffs.
• Wyatt v. Kilgore Independent School District (2010): The high school’s softball coaches cornered a 16-year-old student and refused to let her leave until she admitted she was a lesbian. Then they called her mother and informed her about her daughter's sexuality. The mother filed a lawsuit against the district. The district obtained sworn affidavits from classmates attacking the student’s integrity and character. Settlement: $77,500. Injunctive Relief: The district conducted a training session on sexual orientation and privacy policies and updated the student/teacher handbook that includes language about the district’s anti-discrimination policy for sexual orientation.
• Phan v. Granite School District (2013): After being bullied, a 14-year-old gay teen shot and killed himself in front of other students on an overpass near his junior high school. The school had investigated the bullying allegations and released him from school early because they determined he was doing well but had issues at home. He returned later that same day to commit suicide. Settlement to parents: $75,000. Injunctive Relief: The district expanded their definition of gender harassment and made other assurances to combat bullying.
• Pratt v. Indian River Central School District, No. 09 (2013). Beginning in elementary school, a student endured relentless anti-gay harassment (physical harassment and verbal taunts) that intensified in middle and high school. The high school principal told him to “tone it down” and refused to allow the formation a school gay/straight alliance by the student and his sister. Settlement: Unknown amount. Injunctive Relief: A consultant was hired to make recommendations on anti-harassment policies, training, and education; to administer annual surveys to determine bullying/harassment “hotspots;” and provide live (face-to-face), interactive staff training and student education regarding LGBT student harassment.
• Walsh v. Tehachapi USD, No. 11 (2014): Seth Walsh, a 13-year-old gay middle school student, committed suicide after daily taunts and physical harassment. The lawsuit prompted the California state legislature to pass the Safe Place to Learn Act, nicknamed “Seth’s Law” which required school districts to address harassment based on sexual orientation, gender identity, and gender expression in anti-discrimination policies. Settlement: $750,000. Injunctive relief: The school implemented anti-harassment curriculum and updated procedures for reporting and investigating bullying.
• D. H. v. Moss Point School District, No. 1 (2015):  After anti-gay harassment, a 14-year-old female student attempted suicide and expressed suicidal ideation a second time before the school interceded. Students called her names, threw things at her, encouraged her to kill herself, and repeatedly barred her from using the girl’s bathroom. A teacher forced her to use the boy’s restroom. Settlement: Undisclosed. Injunctive Relief: The district revised anti-bullying and harassment policies and procedures, including equal opportunity policies based on sexual and gender identity, and reformed bullying reporting and response procedures.
• Nugent v. Carl Junction R-1 School District, No. 3 (2015). Harassment of a student started after he came out as bisexual in 7th grade in 2012. He committed suicide in 2013 after the school failed to protect him from ongoing bullying that included homophobic slurs, physical threats, encouragement to commit suicide, and theft and destruction of his property. Settlement: $300,000.

These cases illustrate the types of challenges faced by non-heterosexual and/or non-gender-conforming students in schools. As noted earlier, adding giftedness compounds these challenges. To ensure success for gifted LGBTQ students, NAGC recommends focusing on these areas:

• Curriculum, Instructional Strategies, and Planning
• Professional Development