Legal Implications

Equal Protection Clause of the 14th Amendment:

  • All students have a federal constitutional right to “equal protection” under the law.
  • That means schools are legally obligated to provide the same protection against harassment to LGBTQQ students as they would heterosexual students.
  • Nabozny v. Podlesny, 1996
    • Landmark case which used the Equal Protection Clause of the 14th Amendment as a basis in arguing the school’s legal responsibility to protect students from antigay physical and verbal abuse.
    • The appellate court decision made it clear that schools can be held accountable for failing to protect students from homophobic abuse.
    • The school district was not held liable.
    • Nabozny was awarded close to $1 million.

Title IX:

  • Title IX states that, “No person in the U.S. shall, on the basis of sex be excluded from participation in, or denied the benefits of, or be subjected to discrimination under any educational program or activity receiving federal aid.”

How does Title IX apply to bullying against LGBTQQ students?

  • Although Title IX does not specifically prohibit discrimination on the basis of sexual orientation, it does prohibit harassment that is sexual in nature. It also prohibits harassment that stems from perceptions of stereotyped notions of femininity or masculinity.
  • Wagner vs. Fayetteville School District
    • This case marked a milestone in civil rights for lesbian, gay and bisexual students.  It was the first time a complaint had been filed under Title IX on behalf of a gay student experiencing harassment.  The complaint came after a student, William Wagner, experienced severe anti-LGBTQQ bullying and harassment between eighth and tenth grade.  His mother, Carolyn Wagner contacted the school several times; however, the issue was never properly addressed.  Lambda Legal stepped in and the district agreed to alter its policies and provide training for students and school personnel.

1st Amendment:

  • “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

What does this mean for LGBTQQ students?

A transgender student has the right to dress in accordance with his/her/hir’s gender identity/ expression. The First Amendment also limits school officials from censoring a student’s freedom of speech.


Equal Access Act (EAA)

  • The Equal Access Act (EAA) requires any public “secondary school” that receives federal money andhas a “limited open forum” to allow LGBTQQ-oriented clubs formed by students the same access to facilities as other student clubs.  Under the EAA, student clubs addressing LGBTQQ issues (e.g., a gay-straight alliance) must be treated the same as other clubs.
  • Conditions of the Equal Access Act:
    • Clubs must be requested at the request of students.
    • EAA only applies when the school has a “limited open forum,” meaning the school recognizes other “non-curriculum-related” support groups
  • Pride v. White County School District
    • When students in White County, Georgia attempted to start a Gay-Straight Alliance club, the school board reacted by announcing it would ban all non-curricular student groups the following academic year.  In spite of this announcement, other non-curriculum clubs continued to meet on campus.  In response, the ACLU of Georgia filed a lawsuit against school officials for illegally banning the GSA (under the EAA).  The ACLU reached an agreement whereby the school board would enact an anti-harassment policy to protect lesbian, gay, bisexual and transgender students from bullying.  School officials also agreed to provide faculty members with annual training sessions designed to prevent anti-LGBTQQ bullying.

Letters from the Department of Education

The US Department of Education has issued a series of “Dear Colleague” letters to all public school adminstrators discussing anti-bullying policy as it applies to LGBT students, as well as support for Gay-Straight Alliances. These letters show support from the highest authority and can act as helpful leverage.


 Downloadable Letter Forms

1. Know Your Rights!  A Quick Guide for LGBT High School Students:  http://www.aclu.org/lgbt-rights_hiv-aids/know-your-rights-quick-guide-lgbt-high-school-students

2.  Letter to School Officials Regarding Gay Straight Alliances:  http://www.aclu.org/lgbt-rights_hiv-aids/letter-school-officials-regarding-gaystraight-alliances

3.  Letter to Educators about the Day of Silence:  http://www.aclu.org/lgbt-rights_hiv-aids/letter-educators-about-day-silence

4.  Letter to School Officials about Addressing Anti-LGBT Bullying:  http://www.aclu.org/lgbt-rights/letter-school-officials-about-addressing-anti-lgbt-bullying

5.  A Model Anti-Harassment Policy for Schools:  http://www.aclu.org/lgbt-rights_hiv-aids/model-policy-schools

                        see also:  http://www.glsen.org/binary-data/GLSEN_ATTACHMENTS/file/000/001/1713-3.pdf

6.  Letter Urging Adoption of Safe Schools Policies:  http://www.aclu.org/lgbt-rights_hiv-aids/letter-urging-adoption-safe-schools-policies

7.  Letter to Principals and School Educators about School Censorship:  http://www.aclu.org/free-speech/letter-principals-and-educators-about-school-censorship

8.  Prom Resources for LGBT Students:  http://www.aclu.org/lgbt-rights_hiv-aids/prom-resources-lgbt-students

9.  US Dept. of Education “Dear Colleague” Letter on Gay-Straight Alliance Clubs and the Equal Access Act:  http://www2.ed.gov/policy/elsec/guid/secletter/110607.html

10.  How to File a Bullying, Harassment, or Discrimination Report with the Office of Civil Rights:  http://www.glsen.org/cgi-bin/iowa/all/news/record/2639.html

11.  Letter to School Officials Regarding LGBT Student Privacy:  http://www.aclu.org/lgbt-rights/letter-school-officials-regarding-lgbt-student-privacy

12.  Letter to School Officials Regarding Web Filtering:  http://www.aclu.org/lgbt-rights/letter-school-officials-regarding-web-filtering

13.  Identity Documents: Transgender Rigths Toolkit: A Legal Guide for Trans People and Their Advocates: http://www.lambdalegal.org/publications/trt_transgender_id

14.  Fighting Anti-Trans Violence:  Transgender Rights Toolkit:  http://www.lambdalegal.org/sites/default/files/publications/downloads/trt_transgender_violence.pdf