last updated August 2002
Click on the link in the 'Related Documents' folder to the right for a printer friendly version of the text below and a map of "States with Safe Schools Laws and Policies Prohibiting Discrimination and/or Harassment Based on Sexual Orientation and Gender Identity."
Equal Protection Clause of the 14th Amendment
All students have a federal constitutional right to equal protection under the law. This means that schools have a duty to protect lesbian, gay, bisexual, and transgender (LGBT) students from harassment on an equal basis with all other students. If school officials fail to take action against anti-LGBT harassment because they believe that LGBT students should expect to be harassed, or because they believe that LGBT students bring the harassment upon themselves simply by being openly LGBT, or because the school is uneducated about LGBT issues and uncomfortable addressing the situation, then the school has failed to provide equal protection to the student.
Title IX (applies to all schools that receive federal financial assistance)
Title IX of the Education Amendment Acts of 1972 prohibits discrimination based on sex in education programs and activities receiving federal financial assistance. Although Title IX does not prohibit discrimination on the basis of sexual orientation, sexual harassment directed at an LGBT student is prohibited by Title IX if it is sufficiently severe and pervasive. Title IX also prohibits gender-based harassment, including harassment on the basis of a student’s failure to conform to stereotyped notions of masculinity and femininity.
1st Amendment, Equal Protection & Due Process Clauses
A transgender student’s right to dress in accordance with his or her gender identity may be protected under the First Amendment and the Equal Protection and Due Process Clauses of the U.S. Constitution. The First Amendment limits the right of school officials to censor a student’s speech or expression. Students also have a protected liberty interest (under the Due Process Clause) in their personal appearance. In addition, a transgender student also has a right under the Equal Protection Clause to be treated similarly to other students of the same gender identity. If the school treats the student differently than it would treat other students of the same gender identity (i.e. if it imposes a dress code on a male-to-female transsexual that is different than the dress code that is applied to biological females), then the school is applying rules in a sex discriminatory way (i.e. it is applying the code differently based on the student’s biological sex).
Boy Scouts Amendment
Senator Jesse Helms (R-NC) and Representative Van Hilleary (R-TX) introduced an amendment to the Elementary and Secondary Education Act (ESEA) that prohibits the use of federal funds by any state, local education agency or school that “discriminates” against the Boy Scouts of America with respect to providing equal access to school facilities. This language was included in the legislation despite the fact that the Boy Scouts of America have never lost the ability to meet in public school facilities, despite their anti-gay membership policies. The final language prohibited federal funding to individual schools and local educational agencies that choose not to offer facilities to Boy Scout troops, but does not require schools to sponsor individual Scout troops.
Some schools have non-discrimination policies prohibiting any company or organization that discriminates on the basis of sexual orientation from recruiting on campus. These schools recognize the military's policy barring gays and lesbians from serving openly to be a form of discrimination, and restrict these institutions from recruiting on campus. In response, Representative David Vitter (R-LA) authored an amendment to the Elementary and Secondary Education Act which requires all secondary schools that receive federal funding to permit regular US Armed Services recruitment activities on school grounds. The Vitter Amendment passed by voice vote and was retained in the final legislation.
In December 2000, the Childhood Internet Protection Act was signed into law. It requires public schools and public libraries that receive federal funds for internet services or technology to use internet filtering software that would screen out visual depictions that are “obscene, child pornography, or harmful to minors.” At the same time that Internet filters protect students from “depictions…harmful to minors,” they also block access to some sites that provide responsible information on health, sexuality, LGBT issues and other critical topics. While local officials have the latitude to disable filtering or blocking technology for “bona fide research and other lawful purposes,” many LGBT and other youth do not feel comfortable asking for such assistance. On May 31, 2002, a federal district court declared the filtering mandate for public libraries unconstitutional. The court's order prevents the government from enforcing the filtering provision. However, the decision affects only public libraries. Schools must still meet the filtering requirements.
The Family Life Education Act (FLEA)
If passed, FLEA would provide for inclusive sexuality education that strives to impart positive values with respect to sexual activity and utilize medically accurate information to promote healthy sexual activity. This act would reform the abstinence-only-until-marriage provision in the 1996 Welfare Reform Act to provide $100 million per year to allow states to implement a comprehensive approach to sexuality education in schools that includes information about both abstinence and contraception from both a values and public health perspective. Currently, states that receive federal funding may only fund sexuality education programs which teach that abstinence until marriage (only heterosexuals can legally marry) is the only way to avoid pregnancy and sexually transmitted diseases; that sexual activity outside of marriage may have harmful psychological and physical effects; and that abstinence outside of marriage is the expected standard for all school-age children.
Equal Access Act (EAA)
Under the EAA, a federal law passed in 1984 that applies to all public secondary schools that receive federal funding, a secondary school that provides a meeting place during non-instructional time for any voluntary, student-initiated club is required to provide the same meeting facilities to all non-curriculum related clubs no matter what their “religious, political, philosophical or other” beliefs or discussions may be. This law protects students’ rights to form and attend gay-straight alliances as long as there are other extracurricular clubs on campus. If a school does not permit other extracurricular clubs to meet, however, it does not have to permit a GSA. Since nearly all schools permit some student groups to meet (e.g. cheerleaders, chess, etc.), the difficult question under the EAA is which groups are curriculum-related and which are not. If a GSA is found to be curriculum-related, then the EAA does not require the school to permit the GSA. If they are considered non-curricular, the school does have to allow the GSA.