By Bin Lu

Since the turn of the twentieth century, LGBTQ students have faced several challenges that may prevent them from attaining equal access to the benefits of public education: names and pronouns, access to sex-segregated spaces, apparel and appearance, and peers may play a role in the harassment or bullying of LGBTQ students.[1]

Names and Pronouns

While occupying a relatively small place in the published opinions of federal and state courts, transgender students face major challenges to accessing public education.[2] Experts emphasize that it is very important for transgender youth to have their gender recognized and validated.[3] For example, chosen name use is associated with decreased depressive symptoms and suicidal ideation among transgender youth.[4] However, forty-two percent of transgender students surveyed by the Gay, Lesbian & Straight Education Network (GLSEN) reported that they were prevented from using their preferred name in school.[5] Advocacy groups argue that if transgender persons are to be protected from discrimination, they should have the right to be addressed by the name and pronouns that correspond with their identity.[6]

Access to Sex-Segregated Spaces

Transgender students face serious safety concerns when attempting to use gender-corresponding, sex-segregated spaces.[7] In particular, transgender activists have noted increased risks in bathroom facilities where other bathroom users aggressively police sex segregation.[8]

GLSEN reported that fifty-nine percent of the transgender students they surveyed were required to use the bathroom or locker room of their legal sex while in school.[9]

However, an increasing number of schools and districts have adopted policies that allow transgender students to use sex-segregated facilities in accordance with their gender identity.[10]

Students’ Apparel and Appearance

Generally, schools adopt dress codes in order to maintain educational environments that facilitate instruction and orderliness.[11] While the rules vary widely, they are in place to convey standards of modesty, cleanliness, and decorum.[12] However, school dress codes can sometimes run afoul of students’ First Amendment rights.[13] In Tinker v. Des Moines School District, the Supreme Court held that students had a First Amendment right to wear black armbands protesting the Vietnam War to class as long as their protest did not cause “substantial disruption” or “material interference with school activities.”[14] The district court in Gillman v. School Board for Holmes County applied the Tinker test and held that the school board’s prohibition on students’ clothing, buttons, or apparel that advocated acceptance and fair treatment of LGBTQ people violated the students’ First Amendment rights.[15] Transgender students often rely on clothing and other appearance-related indicators to express their gender identity.[16] Students have challenged the overall application of gender-specific dress codes, as well as the enforcement of gender-specific dress rules for special events, like senior portraits or prom.[17]

Bullying and Harassment

According to GLSEN’s 2019 National School Climate Survey, 68.7% of LGBTQ students in grades six through twelve reported verbal harassment based on their sexual orientation in 2018,  56.9% described verbal harassment based on gender expression, 25.7% testified to physical harassment based on sexual orientation, and 21.8% reported physical harassment based on gender expression.[18] Lastly, 11% of LGBTQ students surveyed were physically assaulted for their sexual orientation and 9.5% for their gender expression.[19]

Suicide Among LGBTQ Youth

Primarily as a result of school bullying and family rejection, LGBTQ youth suffer from low self-esteem, feelings of isolation, and depression.[20] Because the abuse suffered by LGBTQ youth generally corresponds with the discovery of a teenager’s sexual identity, many stay closeted out of fear of rejection and violence.[21] As a result of these combined pressures,

LGBTQ youth commit suicide at shockingly high rates.[22] Gay youth are two to three times more likely to attempt suicide than heterosexual youth. It is estimated that up to 30% of the completed youth suicides are committed by lesbian and gay youth annually.[23] A 2011 Oregon study of over 30,000 eleventh grade students found that 21.5% of LGBTQ youth attempted suicide in the previous twelve months, compared with 4.2% of non-LGBTQ youth.[24] The study also found that the risk of suicide attempts was 20% higher in unsupportive environments than in supportive environments.[25]

Although almost all lesbian, gay, bisexual, transgender, queer, and questioning people have long faced difficulties finding inclusive public education, supportive environments at home, safe environments, and accessible health care, LGBTQ youth are particularly vulnerable to the harms of discrimination and are barred from various legal benefits.[26] The battle for the protection of LGBTQ youth “is uphill because children are children, voteless and largely voiceless, and consequently relatively powerless. It is particularly uphill in the United States, with our tradition of individual autonomy which keeps the government largely out of the family, limiting its role in protecting children.”[27] However, in recent years, the government, in both its judicial and legislative capacity, has increasingly recognized the equal rights of the LGBTQ community.[28]

 

[1] Noreen Verini et al., Challenges Facing LGBTQ Youth, 23 Geo. J. Gender & L. 179, 181 (2022).

[2] M.V. Lee Badgett et al., Best Practices for Asking Questions to Identify Transgender and Other Gender Minority Respondents on Population-Based Surveys, UCLA Sch. of L. Williams Inst.  (Sept. 2014), http://williamsinstitute.law.ucla.edu/wp-content/uploads/geniuss-report-sep-2014.pdf.

[3] Transgender Individuals’ Access to Public Facilities, Am. Medical Ass’n (2018), https://www.ama-assn.org/system/files/2019-03/transgender-public-facilities-issue-brief.pdf.

[4] Stephen Russell et al., Chosen Name Use is Linked to Reduced Depressive Symptoms, Suicidal Ideation and Behavior Among Transgender Youth, J. Adolesc. Health (Oct. 2018), https://www.jahonline.org/article/S1054-139X(18)30085-5/fulltext.

[5] See Joseph G. Kosciw et al., Educational Exclusion: Drop Out, Push Out, and the School-to-Prison Pipeline Among LGBTQ Youth, Gay, Lesbian & Straight Educ. Network (2016), https://www.glsen.org/sites/default/files/2019-11/Educational_Exclusion_2013.pdf.

[6] See Best Practices for Serving Transgender and Gender Nonconforming Students in Schools, Mass. Transgender Political Coal. Pol’y Comm. (Nov. 2012), https://www.masstpc.org/wp-content/uploads/MTPC-2013-K-12-Best-Practices.pdf; Fact Sheet: Transgender & Gender Nonconforming Youth in Schools, Sylvia Rivera L. Project (2015), http://srlp.org/resources/fact-sheet-transgender-gender-nonconforming-youth-school/.

[7] Noreen Verini et al., Challenges Facing LGBTQ Youth, 23 Geo. J. Gender & L. 179, 198 (2022).

[8] Id.

[9] See Joseph G. Kosciw et al., Educational Exclusion: Drop Out, Push Out, and the School-to-Prison Pipeline Among LGBTQ Youth, Gay, Lesbian & Straight Educ. Network (2016), https://www.glsen.org/sites/default/files/2019-11/Educational_Exclusion_2013.pdf.

[10] Noreen Verini et al., Challenges Facing LGBTQ Youth, 23 Geo. J. Gender & L. 179, 198-99 (2022).

[11] Id. at 209

[12] Id.

[13] Id.

[14] Tinker v. Des Moines Indep. Comm. Sch. Dist., 393 U.S. 503, 514 (1969).

[15] Gillman v. Sch. Bd. for Holmes Cnty., 567 F. Supp. 2d 1359, 1362 (N.D. Fla. 2008).

[16] Noreen Verini et al., Challenges Facing LGBTQ Youth, 23 Geo. J. Gender & L. 179, 210 (2022).

[17] Id.

[18] See Joseph G. Kosciw et al., The 2019 National School Climate Survey, The Experiences of Lesbian, Gay, Bisexual, Transgender, and Queer Youth in Our Nation’s Schools, Gay, Lesbian & Straight Educ. Network (2020), https://www.glsen.org/sites/default/files/2021-04/NSCS19-FullReport-032421-Web_0.pdf.

[19] Noreen Verini et al., Challenges Facing LGBTQ Youth, 23 Geo. J. Gender & L. 179, 213 (2022).

[20] Id. at 215.

[21] Id.

[22] Id.

[23] Rea Carey & Suman Chakraborty, Class President or ‘Just Another Suicide Statistic’: The Effects of Homophobia Harassment on Youth, Geo. J. Gender & L. 125, 132 (1999).

[24] Noreen Verini et al., Challenges Facing LGBTQ Youth, 23 Geo. J. Gender & L. 179, 216 (2022).

[25] Id.

[26] Id. at 241.

[27] Id. at 241-42.

[28] Id.