Section 3. Emerging Issues Even before same-sex marriage was legalized in the U.S. in 2015, gender identity and sexuality has become a hot topic of conversation and controversy. More recently, the topic of which bathrooms transgender people use has sparked debate for public schools. Recent polls indicate that public support for gay marriage has increased in recent years, but there is still a large minority of American adults who oppose it. Similarly, a May 2016 poll found that 57 percent of Americans either somewhat oppose or strongly oppose laws requiring transgender people to use the bathroom corresponding to their gender at birth, while 38 percent strongly or somewhat favor such laws (CNN and ORC International, 2016). iteachU.S. recognizes that beliefs on both sides of this issue are often closely held. We believe there is room in the teaching profession for a diversity of beliefs, and therefore, we do not endorse a specific viewpoint on these issues. We do encourage teachers to treat all students with respect, kindness, and fairness, providing them equal opportunities to learn and participate in the classroom. Further, we encourage teachers to comply with state and federal laws as well as school district policy. Understand that lesbian, gay, transgender, and bisexual (LGBT) families are becoming more common, and some of your students may identify as LGBT. Although the legal landscape in this area is rapidly evolving, the following information will help you to navigate the legal requirements for teachers and schools in serving these students. Source: CNN and ORC International. (2016, May 9). Retrieved from http://i2.cdn.turner.com/cnn/2016/images/05/09/transgender.rights.pdf The Legal Landscape The following federal laws and cases provide guidance to teachers and schools in treating LGBT students fairly. Note that there are no federal laws that explicitly prohibit educational discrimination of students on the basis of sexual orientation, but a growing body of case law has interpreted laws protecting students from sexbased discrimination as applying to discrimination based on sexual orientation or transgender status, as well. © 2017 5600 101 Protections for LGBT Students Equal Access to Education Title IX of the Education Amendments states, “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” 20 U.S.C. § 1681(a). A 2010 Dear Colleague Letter from the U.S. Department of Education encourages schools to extend this protection to students based on gender. This means that schools should not prohibit LGBT students from participating in school or schoolsponsored activities on the basis of their sexual orientation. Equal Access to Facilities The Equal Access Act states that, “It shall be unlawful for any public secondary school which receives Federal financial assistance and which has a limited open forum to deny equal access or a fair opportunity to, or discriminate against, any students who wish to conduct a meeting within that limited open forum on the basis of the religious, political, philosophical, or other content of the speech at such meetings.” This means that students may form Gay-Straight Alliances (GSAs) or other student clubs focusing on LGBT issues, and such clubs must have equal access to school facilities. Freedom from Harassment The Equal Protection Clause of the 14th Amendment to the U.S. Constitution states, “No state shall…deny to any person within its jurisdiction the equal protection of the laws.” In 1996, a gay student, Jaime Nabozny, sued his school’s officials for their failure to protect him from bullying under the Equal Protection Clause (92 F.3d 446 (7th Cir. 1996)). On the basis of Nabozny vs. Podlesny, coupled with clarification from the U.S. Department of Education on Title IX, LGBT students should enjoy equal protections from bullying and harassment. Emerging case law may also expand Title IX’s de facto protections, as the courts allowed a student to bring suit under Title IX based on the student’s claims that he was the target of harassment because his peers thought he was gay (Ray v. Antioch Unified School District, 107 F. Supp. 2d 1165 (N.D. Cal. 2000)). The implication of these laws is that educators should not allow bullying or harassment in any © 2017 5600 102 situation, but bullying or harassment based on a student’s sexuality (whether real or perceived) may carry an additional legal burden of responsibility for teachers or administrators who do not act to stop such behavior. The Office for Civil Rights (OCR) of the U.S. Department of Education has affirmed this position, saying that, “Sexual harassment directed at gay or lesbian students that is sufficiently serious to limit or deny a student's ability to participate in or benefit from the school's program constitutes sexual harassment prohibited by Title IX.... the school would need to respond promptly and effectively... just as it would if the victim were heterosexual” (Revised Sexual Harassment Guidance, 2001). Privacy Protection There is no explicit legal requirement or court precedent to protect students from an unwanted disclosure of their sexual orientation. In fact, courts have upheld teachers’ and schools’ decision to disclose their students’ sexual orientation in certain instances. For example, when straight-A student Charlene Nguon was suspended from her high school, her mother wanted to know why. The school informed her mother that she was suspended for inappropriate public displays of affection (IPDA) with her girlfriend. Although Nguon sued the school for disclosing her sexual orientation to her parents, the U.S. District Court determined that the school had a legitimate reason to disclose that Nguon was engaged in IPDA with another girl, because it was the cause of Nguon’s suspension. However, in another case, Sterling v. Borough of Minersville, the 3rd Circuit Court of Appeals found that that a police officer could be held liable after an 18-year-old high school committed suicide after the officer threatened to disclose the student’s sexual orientation to the student’s family. Based on the current legal landscape, teachers should be cautious about disclosing a student’s sexual orientation and take reasonable steps to protect student privacy. While there may be occasions when it is appropriate to do so, do not make your student the subject of gossip in the teachers’ lounge or among other students. Right to Free Speech Based on Tinker v. Des Moines (393 U.S. 503 (1969), students’ First Amendment rights to free speech do extend to their time at school. This means that they are allowed to express that they are gay, lesbian, bisexual, or transgendered, (or express opposition to these lifestyles) as long as the speech does not cause significant disruption in the classroom. This protection extends to non-obscene attire with LGBT themes and to student’s right to bring a date of either gender to school social events. It also means that students may express themselves in transgendered attire if such clothing is otherwise in compliance with the school’s dress code. © 2017 5600 103 Access to Bathrooms based on Gender Identity In a 2016 “Dear Colleague” letter, the U.S. Department of Education stated, “The Departments treat a student’s gender identity as the student’s sex for purposes of Title IX and its implementing regulations. This means that a school must not treat a transgender student differently from the way it treats other students of the same gender identity. The Departments’ interpretation is consistent with courts’ and other agencies’ interpretations of Federal laws prohibiting sex discrimination (Lhamon and Gupta, 2016, p. 2). In 2016, North Carolina passed a state law requiring people to use the bathroom that corresponds to their biological gender, even if they identify with a different gender. Other states are considering such laws, and some local cities and municipalities already have such laws in place. What should teachers do in the face of conflict between the federal guidance and a state law, local law, or other district policy? First, consult your district handbook or campus administrator to determine what policies are in place at your school. Then, act in accordance with your conscience, but recognize the failure to adhere to the laws (federal or local) may have legal consequences. You may with to see if your local teacher’s union or professional association offers additional legal protections or guidance on this issue. Some parents have expressed concerns about their children sharing bathrooms or locker room facilities with transgendered children. These parents should be given the option for their child to use a private facility, if available, and concerns should be referred to the campus administration and school board. Be sure to make such referrals and document concerns in writing. Sources: Lhamon, Catherine E. and Gupta, Vanita. Dear Colleague letter: transgender students. Retreived from http://www2.ed.gov/about/offices/list/ocr/letters/colleague201605-title-ix-transgender.pdf Revised Sexual Harassment Guidance, Harassment of students by school employees, other students or third parties (OCR, Jan. 19, 2001). Ali, Russlyn (2010, October 26). Dear colleague letter: Harassment and bullying. Retreived from http://www2.ed.gov/about/offices/list/ocr/letters/colleague201010.pdf © 2017 5600 104 Conclusion To make the whole strong and unified, each part must be strong and supportive of the other parts. We are supportive of each other when we work to strengthen our own group--and when we speak up for groups other than our own when we see injustice and inequity. We learn to cooperate by recognizing and strengthening the interdependence that unites us. The following quotation, attributed to Martin Niemoeller (1892-1984), helps us see that we are all in this life together. On Speaking Up In Germany they came first for the Communists, and I didn’t speak up because I wasn’t a Communist. Then they came for the Jews, and I didn’t speak up because I wasn’t a Jew. Then they came for the trade unionists, and I didn’t speak up because I wasn’t a trade unionist. Then they came for the Catholics, and I didn’t speak up because I was a Protestant. Then they came for me, and by that time no one was left to speak up. Congratulations on completing your seventh and final instructional course. As a reminder, you will be enrolled in the Field Experience Course, 5700, after you have successfully completed all of the assignments in this course and you have notified the iteachU.S. that you have secured a field experience position. © 2017 5600 105 5600: Assignment 4 Rubric Responding to Student Sexuality Essay Assignment Unsatisfactory (1) Characteristic State Legal The candidate does not Requirements accurately describe the legal requirements of his state and the federal legal requirements pertaining to LGBT students and families. Basic (2) Proficient (3) Exemplary (4) The candidate accurately describes the legal requirements of his/her state and the federal legal requirements pertaining to LGBT students and families. The candidate accurately describes the legal requirements of his/her state and the federal legal requirements pertaining to LGBT students and families. The candidate names at least one emerging legal challenge related to serving LGBT students in public schools. Personal Approach The candidate’s personal approach demonstrates respect for all students and complies with current laws. The candidate’s personal approach demonstrates respect for all students and complies with current laws. The candidate models The candidate accurately describes the legal requirements of his/her state and the federal legal requirements pertaining to LGBT students and families. The candidate names at least one emerging legal challenge related to serving LGBT students in public schools, including a citation of a current news article describing the case or debate. he candidate’s personal approach demonstrates respect for all students and complies with current laws. The candidate models © The candidate’s personal approach does not demonstrate respect for all students or would not comply with current law. 2017 5600 1 compassion for the challenges facing LGBT students and families. Spelling and Grammar © The work contains 5 or more spelling or grammatical errors, or the work is not written at a graduate level. The lack of proofreading or writing mastery significantly interferes with the clarity of the work. 2017 The work contains 3-4 spelling or grammatical errors, or the writing is basic in sentence structure. The lack of proofreading or writing mastery detracts from the clarity of the work but the writer’s overall meaning is still clear. 5600 The work contains 1-2 spelling or grammatical errors but they do not interfere with the clarity of the work. The work is written at a graduate level. compassion for the challenges facing LGBT students and families. By providing specific examples, the candidate demonstrates exemplary commitment to creating a safe, inclusive learning environment for all children. The work contains no spelling or grammatical errors. The work is written at a graduate level or post-graduate level. The writing is wellorganized and clear. 2 
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