STATE LAWS, REGULATIONS, AND GUIDANCE THAT AFFIRM NONDISCRIMINATION PROTECTIONS FOR LGBTQ+ STUDENTS
The recent U.S. Supreme Court decision in Bostock v. Clayton County, Georgia affirmed what many education and civil rights advocates have long known: discrimination against people on the basis of sexual orientation and gender identity has been and still is prohibited under federal civil rights laws that ban sex discrimination. Prior to this decision, legislation that prohibits discrimination against students in K-12 schools on the basis of sexual orientation and gender identity passed in 17 states and the District of Columbia. Wisconsin passed legislation that prohibits discrimination based on sexual orientation. New Mexico and Utah promulgated regulations that explicitly establish protections based on sexual orientation. Puerto Rico prohibits discrimination against students on the basis of both sexual orientation and gender identity, the Northern Mariana Islands only explicitly provides protections on the basis of sexual orientation, and the Virgin Islands only explicitly provides protection on the basis of gender identity. Statutes that specifically address the treatment of transgender, nonbinary, and gender nonconforming students are in place in 5 states and 3 state agencies have issued regulations. Comprehensive state guidance on transgender, nonbinary, and gendernonconforming students has been issued in 18 states, District of Columbia, Puerto Rico, and the Virgin Islands. This list excludes states such as Pennsylvania and Kentucky that have good guidance on school records and New Mexico and Louisiana that issued guidance on GSAs (Gender and Secuality Alliances or Gay Straight Alliances), but do not address other critical aspects of K-12 learning communities.
STATE ATHLETIC ASSOCIATION GUIDANCE ON INCLUSION OF TRANSGENDER AND NONBINARY STUDENTS & STATE ATHLETIC BAN LEGISLATION OR EXECUTIVE ORDERS
GLSEN advocates for policies that ensure that transgender (trans) and nonbinary students can participate in sports on a team or in competition based on their gender identity. There are 16 states (including D.C) that have friendly policies that help facilitate full inclusion of trans and nonbinary students in high school athletics. There are 6 states with guidance that excludes trans and nonbinary students by requiring students to participate in athletics based on their birth certificate or their sex assigned at birth. Another 3 states bar trans and nonbinary students from participation unless they have undergone surgery. Discriminatory restriction policies that create additional barriers to inclusion of trans and nonbinary students are in place in 16 states. Finally, there are 10 states that have not issued any statewide guidance on best practices that should be implemented in schools leaving students to navigate a patchwork of policies that differ between local education agencies and schools in the state. Additionally, some states have passed discriminatory legislation barring gender-affirming participation of transgender student athletes, and only allow students to compete on teams based on the sex listed on an existing birth certificate. This began with HB 500 in Idaho in 2020, and since then a rash of similar bills have been introduced in more than 30 states, with legislation being enacted in Arkansas, Mississippi, Alabama, Tennessee, and West Virgina, thus far during the 2021 legislative cycle. Furthermore, the governor of South Dakota has issued a state ban via executive order. The Idaho law is currently being challenged in federal court in Hecox v. Little.
Enumerated Curricular Standards Legislation by State
Legislation passed in six states to amend curricular standards to include affirming representation of LGBTQ+ communities in K-12 schools. Under affirming statewide curricular standards local education agencies and schools develop curriculum that is uniquely tailored to meet the needs of communities. An additional four states still have so-called “No Promo Homo” laws that prohibit positive and affirming representation of LGBTQ+ identities in K-12 schools. Finally, ten states have passed laws that prohibit anti-racist curriculum.
Enumerated Anti-Bullying Laws Protecting LGBTQ Students State by State
There are 21 states and the District of Columbia that have passed legislation that specifically prohibits bullying and harassment of students by their peers in K-12 schools based on actual or perceived sexual orientation and gender identity. Utah, Hawaii, and West Virginia promulgated regulations that establish protections based on sexual orientation and gender identity. The territories of Puerto Rico and the Northern Mariana Islands have laws that protect students from bullying and harassment on the basis of sexual orientation and gender identity. The territories of Guam and the Virgin Islands have protections for students on the basis of sexual orientation only.