Anti-Gay Bullying: A Matter of Life and Death
Adolescence can be tough. Realizing you’re gay makes those years even tougher. It stands to reason that growing up as a gay or lesbian teenager in a conservative area that shuns homosexuals would be even harder.
It is. I know from firsthand experience.
For many students, teachers are a source of comfort and refuge from the daily insults in locker rooms, hallways, and cafeterias. They were for me.
But in Minnesota’s Anoka-Hennepin School District – the state’s largest – four teenage students committed suicide directly due to anti-gay bullying that their teachers ignored. The teachers weren’t necessarily callous or even unkind. They were just following school policy.
The “Sexual Orientation Curriculum Policy” in effect in that school district –prohibited teachers from discussing sexual orientation with their students. Referred to unofficially as the “No Homo Promo” policy, it stated that teachers and staff must “remain neutral on matters regarding sexual orientation.” Teachers who violated this policy would face disciplinary action, or could even be fired.
And so gay (or suspected of being gay) students in this school district were often demeaned, ostracized, called “fags”, “dykes”, or worse. Complaints about the behavior were ignored, as teachers and school officials looked the other way or told students to deal with it on their own.
Last July, the Southern Poverty Law Center and National Center for Lesbian Rights sued on behalf of six Anoka-Hennepin students, claiming that the so-called “neutrality” policy created a hostile environment for lesbian, gay, bisexual, and transgender (LGBT) students and failed to provide teachers and staff with clear guidelines regarding appropriate responses to sex and gender-based harassment.
School officials settled the lawsuit in Minneapolis on March 5 by a 5-1 vote of the board of education.
There has been some terrific coverage of the bullying (see especially this Rolling Stone article) but LASIS looks inside the situation through the prism of the law.
The lawsuit described each of the six victims of anti-gay bullying as not-conforming to gender stereotypes: boys who dressed in glittery scarves and sang songs by Lady Gaga, girls who cut their hair short and didn’t show interest in their male classmates, makeup or dresses. They were easy targets.
Each of the students named in the lawsuit was verbally attacked by classmates and their pleas for help from teachers went unheeded. Some students chose to transfer to other schools. One attempted suicide. All of them reported an inability to focus on schoolwork while being shamed and tormented in and outside the classroom.
Because they were unable to turn to anyone at school for help, the students alleged that their treatment amounted to a violation of the equal protection clause of the 14th amendment, Title IV or of the Civil Rights Act, and Title IX of the Education Amendments of 1972. The district denied any wrongdoing.
The most troubling allegation was that district officials ignored claims of harassment and failed to take any action to prevent it. If the case hadn’t settled and these facts would have been proven true in court, the district would likely have been held liable for the continued harassment.
Title IV of the Civil Rights Act and Title IX of the Education Amendments prohibit discrimination and harassment based on gender stereotypes, race, and sex. A school’s federal funding depends on adherence to this policy.
In a 1996 case, Nabozny v. Podlensy, a Wisconsin federal district court considered the claims of a student, Jamie Nabozny, who was subjected to relentless anti-gay verbal and physical harassment and attempted suicide multiple times before running away and then suing his former school district under the equal protection clause. The court ruled that a school could not be held liable for the actions of its students and that no equal protection claim was presented because no “suspect class” existed.
The decision was odd because just a few months earlier, the Supreme Court had decided Romer v. Evans, sexual orientation is considered a “suspect classification” for purposes of protection under the 14th amendment, and those discriminating on that basis are liable.
It wasn’t until Lamda Legal, an impact litigation firm specializing in sexuality law, stepped in to help Mr. Nabozny that the decision was successfully overturned in Chicago by the Seventh Circuit Court of Appeals. It was the first time a federal court recognized that not only does a viable equal protection claim exist (reaffirming that LGBT are a “suspect class”), but also that public schools have a constitutional obligation to protect gay students from anti-gay abuse.
With these decisions as precedents, the student plaintiffs in Minnesota claimed that the neutrality policy in effect at their schools prevented teachers from addressing claims of harassment based on sexual orientation as they would other claims of harassment –
A solid legal claim? “Absolutely,” said New York Law School professor Kris Franklin, a self-described non-conformist and gay rights activist. “Things are much different now than they used to be for gay kids in school. Before it was as if people knew gays existed but it couldn’t possibly be any of their friends or family; that culture is changing. Now knowing someone who’s gay isn’t just some abstract concept.”
Professor Franklin added that if any of her kids were to be bullied (and I pity the school district that picked a fight with her) she’d demand that teachers offer some sort of protection for her kids as a direct result of the Nabozny decision and the Anoka-Hennepin settlement.
New York Law School Professor Arthur Leonard, a decorated advocate for gay and lesbian rights likewise found that the No Homo Promo policy put the Minnesota school district on shaky legal ground. “It would seem to me that any school district that’s receiving competent legal advice should be told that they’re playing a very dangerous game if they’re trying to just look the other way and not take any action to help these students.”
If teachers and officials within the Anoka-Hennepin district were aware of incidents of anti-gay harassment and didn’t report them or try to prevent them in the future, they’d probably have been held liable if the case went to trial.
The schools’ attorneys must have thought so too since they settled out of court and agreed to pay damages, repeal the neutrality policy, and teach district officials, teachers, and students about sexual orientation discrimination and sex-based harassment in schools.
While the school district settlement marks a victory in some ways, the fight isn’t over for LGBT students in high schools. Gay and lesbian students will be bullied tomorrow and the day after that.
But if teachers are permitted to engage with, and talk to, and encourage the victims of anti-gay bullying, they can be lifesavers for students who might otherwise sink beneath the often-treacherous waters of adolescence.