Know Your Rights: LGBTQ Student Civil Liberties

1. Know Your Rights: LGBTQ Student Civil Liberties

2. American Civil Liberties Union of Southern California • The American Civil Liberties Union is a national organization est. 1927 • Work to defend and preserve the rights of all people, as guaranteed by the Constitution and laws of the United States. • Our mission is to defend civil liberties and rights in the U.S. • Active in a wide variety of issues (Workers’ Rights, Immigrants’ Rights, Privacy, Economic Justice, Racial Justice, Human Rights, etc.) • Over 500,000 members, active in all 50 states that help support our work

3. Legal Disclaimer • The topics we will discuss today are basic rights pertaining to students. While I’m not a lawyer and cannot give legal related advice or answer individual legal questions, I will be talking about how to protect yourself and your students. If there are specific legal questions, feel free to contact me either after the presentation or via email.

4. Bullying and Harassment at School • Homophobic remarks and harassment throughout the school day can cause LGBTQ youth to feel disrespected, unwanted, and unsafe • The National School Climate Survey found that 8 out of 10 students hear anti-LGBT language frequently (2011) Source: GLSEN - “National School Climate Survey” (2011)

5. School Climate Today • Biased Remarks at School • 84.9% of students heard “gay” used in a negative way frequently or often at school and 91.4% reported that they felt distressed because of this language • 56.9 % of students reported hearing homophobic and negative remarks about gender expression from teachers or other school staff Source: GLSEN - “National School Climate Survey” (2011)

6. School Climate Today • Safety and Victimization at School • 6 out of 10 students felt unsafe because of their sexual orientation • 4 out of 10 students felt unsafe because of their gender expression • 6 out of10 students who were harassed or assaulted in school did not report the incident to school staff • 4 out of 10 students who did report an incident said that school staff did nothing in response Source: GLSEN - “National School Climate Survey” (2011)

7. School Climate Today • Absenteeism • 3 out of 10 students missed at least one entire day of school in the past month because they felt unsafe or uncomfortable • Students who experience high levels of victimization were more likely to miss a day of school in the past month • 3 times as likely for sexual orientation • 2 times as likely for gender expression Source: GLSEN - “National School Climate Survey” (2011)

8. One Thing You Would Like to Change Right Now Source: HRC - “Growing Up LGBT in America” (2012) LGBT Youth Understanding/tolerance/ hate My parents/family situation Where I live/who I live with Non-LGBT Youth Money/debt/finances Appearance/weight Improving mental health

9. Most Important Problem Right Now Source: HRC - “Growing Up LGBT in America” (2012) LGBT Youth Non-accepting families School/bullying problems Fear of being out or open Non-LGBT Youth Classes/exams/grades College/career Financial pressures related to college or job

10. School Climate Today • Solutions: • Gay-Straight Alliances • Inclusive Curriculum • Supportive Educators • Comprehensive Bullying/Harassment Policies Source: GLSEN - “National School Climate Survey” (2011)

11. School Climate Today • Students in schools with these solutions report: • Hearing fewer homophobic remarks • Have staff that intervened upon students’ behalf when hearing homophobic remarks • Feeling safer at school • Are physically and verbally harassed at lower rates • Missed fewer days of school • Greater sense of connectedness with school community and students Source: GLSEN - “National School Climate Survey” (2011)

12. Freedom of Speech • First Amendment • U.S. and CA Constitutions apply on campus • The First Amendment protects the Freedom of Speech • Particularly important for minority groups with “unpopular” viewpoints • Gay Pride Parades • Transgender Day of Remembrance • Day of Silence • Harvey Milk Day

13. Freedom of Speech • Guarantees students the right to speak our minds, including LGBTQ issues, regardless of public opinion • Censorship of pro-LGBTQ messages is not allowed solely on the basis of it being controversial, inappropriate for minors or just morally wrong • Allows students to share their stories, be who they are, and build public support for LGBTQ equality

14. Freedom of Speech • Applies in many different contexts • Freedom To Be “Out” • Courts have found that this is NOT inherently sexual • Freedom To Discuss LGBTQ Issues • Class Projects • Book Reports • T-shirts • Armbands • Buttons • Bulletin Boards

15. Freedom of Speech • Limitations • A student may NOT: • Substantially disrupt class time or the school environment • Incite others to break the law or school rules • Say obscene things • Discussion of LGBT issues is not obscene • Make false statements of fact (versus opinion) about another person (i.e. defamation)

16. Freedom of Expression • First Amendment • Attending school dances with a same-sex partner • Gender expression • Expression vs. Dress Code Policies • No filtering of internet sites that have pro-LGBT messaging • Some schools have filters that label it as “sexual content” because it says “LGBT”

17. Freedom of Assembly • First Amendment also protects your Freedom of Assembly • The Federal Equal Access Act • Went into effect in 1984 • Federal law requires school to allow the GSAs • Only if non-curriculum clubs are allowed to exist and meet on school property • Must provide the same access to meeting space, budget allocations, ability to post flyers, public announcements • Schools may not treat a GSA any differently than any other non-curriculum based school clubs Source: Title 20, United States Code,  § 4071

18. Right to Privacy • Outing • Students have a right to privacy, which includes the right to keep information about their sexual orientation private • School officials may NOT tell a student’s parents without their consent, even if the student is “out” on campus except with a compelling justification • School officials may NOT use a student’s sexual orientation to manipulate students in any way

19. Right to Unbiased & Inclusive Curriculum • Fair Accurate Inclusive Respectful Education (FAIR) Act (SB 48) • Went into effect January 2012 • Includes historical LGBT people and people with disabilities in K-12 social sciences through age-appropriate curriculum Source: CA Ed Code 51204.5, 51500, 51501, 60040, & 60044

20. Right to Unbiased & Inclusive Curriculum • The California Comprehensive Sexual Health and HIV/AIDS Prevention Education Act (SB 71) • Went into effect in 2004 • Replaced confusing and contradictory statutes on sex education • All public schools must teach HIV prevention education • If public schools choose to teach sexual education, it must be comprehensive, medically accurate, objective, age-appropriate and bias-free • This excludes abstinence-only education and religious doctrine • More specific content requirements kick in, starting in 7th grade • Educators cannot present information that is biased against LGBT people Source: CA Ed Code 51930 – 51939

21. Right to Healthcare • Students 12 years and older have the right to leave school to seek confidential medical services. Sensitive services can include but are not limited to: • HIV or Sexually transmitted infection (STI) testing • Mental health or counseling services • Drug or alcohol treatment/ counseling • Abortion care • Obtaining birth control • Schools must excuse students for confidential medical services without the consent or notification of the student’s parent • Schools must excuse absences related to having medical services rendered. Teachers must allow students to make up all assignments Source: CA Ed Code 48205, 46010.1 (plus a panoply of state laws and cases)

22. Right to Be Free From Harassment • Students are protected on the basis of: • Sexual orientation • Gender, gender identity and gender expression • Actual or perceived membership • Association with people with any of the protected characteristics • Schools must have a uniform nondiscrimination standards to ensure that students, teachers and school administrators understand the protections in California schools Source: CA Ed Code 200-220

23. Right to Be Free From Harassment • Seth’s Law (AB 9) • Went into effect July 1st, 2012 • New California state law strengthens existing state anti-bullying laws • Requires teachers and other school personnel to intervene when safe to do so Source: CA Ed Code 234, 234.1, 234.2, 234.3 & 234.5

24. Right to Be Free From Harassment • Bullying: Alternative Discipline (AB 1729) • Went into effect January 1st, 2013 • New California law requires administrators try alternatives before suspension, except for certain serious offenses • Including referrals to counselors and guidance teams, positive behavioral support and restorative justice Source: CA Ed Code 48900 & 48900.5

25. School Climate & School Discipline • LGBTQ Youth are often punished inconsistently and disproportionately • Punitive discipline policies often remove youth from the education environment (“exclusionary discipline”) • Few opportunities for Positive Behavior Intervention Systems (PBIS) and/or Restorative Justice

26. Current Representation Approximately 300,000 LGBTQ youth are arrested and/or detained each year of which 60% are black or Latino LGBTQ youth make up 5-7% of the national youth population and 13-15% of those in juvenile detention

27. Zero Tolerance Policies • Zero tolerance policies require schools to suspend or expel students for violating rules, no matter what extenuating circumstances there might be • Zero tolerance policies are often put in place in response to the failure of school districts to address the problem of anti-LGBTQ bullying

28. Zero Tolerance Policies • Why don’t Zero Tolerance policies help protect LGBTQ students? • They don’t improve school safety or climate • They don’t stop students who bully from bullying • They are used against LGBTQ students more than straight students

29. Zero Tolerance Policies • LGBTQ students sometimes engage in bullying behavior as a “defense” or “survival” mechanism. • Often reflects institutionalized bias

30. Other Means of Push-out • Willful Defiance • Truancy/School-based arrests • High stakes testing • “Outing” • Foster Care and Homelessness

31. Right to Be Free From Harassment • School Success and Opportunity Act (AB 1266) • Goes into effect January 1st, 2014 • Clarifies existing state nondiscrimination laws that prohibit discrimination on the basis of gender, gender identity and gender expression • Clarifies that it applies to programs, activities, and facilities that are separated by gender Source: CA Ed Code 220, 221, 234.1

32. Right to Be Free From Harassment • CA law is designed to protect LGBTQ students and holds schools and school officials liable for failing to do so • Students DO NOT have to put up with being bullied • Schools are required to protect against harassment • They may NOT ignore it • They may NOT say it should be expected • They may NOT say they didn’t know they had to protect students

33. Right to Be Free From Harassment • Students may NOT be harassed for: • Being LGBTQ • Being perceived as LGBTQ • For being friends with LGBTQ people • For having LGBTQ family members • For dressing in any particular gender nonconforming clothing

34. Education Code Mandates • Nondiscrimination Policy • Adopt a policy that prohibits discrimination, harassment, intimidation, and bullying • Uniform Complaint Procedures • Adopt a process for receiving and investigating complaints of discrimination, harassment, intimidation, and bullying

36. Uniform Complaint Form • California Department of Education mandated form • All school districts must have this form • If the district has a specific form for their district, complainants should use the one provided • If the district does not have one, use the CDE’s • Where to find the UCF • Ask the school • Ask the district • Check the website (school, district, etc).

37. Tips for Filing a Complaint • Any student, parent or interested-third party can file a complaint • A complaint may be filed anonymously • Have someone from the school or district sign and date the form • Ask for a solution • Mark in your calendar the timeline • Do NOT use Williams form • Do NOT use employee discrimination form

38. Enumerated Categories • Disability • Gender • Gender identity • Gender expression • Nationality • Race or Ethnicity • Religion • Sexual orientation • Actual or perceived membership • Association with a person or group

39. Publicity of Policies • Associated Student Body room • Teacher’s Lounges • Classrooms • Student/Parent Handbooks • School/District Websites

40. Scenarios

41. Scenario 1 Jessie is a transgender (MTF) student at a California public high school. Jessie has just recently begun to transition, including at school. Alex is a student in Jessie’s class who was raised by conservative parents to believe that being transgender is morally wrong. Every day when Jessie comes into the classroom Alex taunts her and calls her names. When Jessie complained to the teacher, the teacher told her that she should stop drawing so much attention to herself and should just wear “normal” clothes. Please discuss whether the teacher is breaking the law. Also discuss several ways in which Jessie can advocate for herself.

42. Scenario 2 A group of students at a California public school, wants to start a Gay-Straight Alliance club because they feel that LGBTQ students and allies on campus face a lot of harassment and discrimination. When they asked the principal for permission to start the club, she told them that Gay-Straight Alliance clubs were against school policy because it was inappropriate to talk about sexuality at school. ABC high school has several other clubs that are allowed to meet on campus at lunch time and after school, including Math Club, Science Club, Chess Club, Knitting Club, Democratic Club, and Mountain Biking Club. The other clubs are allowed to post flyers in the hallways and present in classrooms. Please discuss whether the principal is breaking the law by not allowing the students to form a Gay-Straight Alliance club. Also discuss what the students should do.

43. Scenario 3 Daniel is the advisor to the GSA club at a local public high school.  He has filed more than twenty complaints with the school on behalf of several different students who participate in the GSA for the bullying they have experienced—from both teachers and other students.  One teacher told a student she should “go back in the closet and throw away the key.”  None of the students has ever been interviewed about what they have experienced, nor has the school ever provided a written response to any of their complaints. Please discuss what responsibilities the school has ignored.  Also discuss what Daniel can do to help advocate for his students.

44. Scenario 4 Renee is a gender nonconforming student starting at a local public high school. She is trying to enroll in a physical education class. Her counselor will only let her sign up for a dance class because that is what all girls get signed up for whereas all the boys get signed up for cross-country. Renee was also told that on her first day it would be “Blue and Pink Day” where all the boys have to wear blue and all the girls have to wear pink. Renee doesn’t feel comfortable in her dance class and she also doesn’t feel comfortable wearing pink to school. Please discuss whether the school is breaking the law.  Also discuss what Renee can do to help advocate for herself.

45. Scenarios • What went well? • What went wrong? • Were the student’s rights violated? • What are our recommendations?

46. Questions? Comments? ?

47. Contact Information • Joey Hernández • Community Engagement & Policy Advocate • ACLU of Southern California • Phone: 213-977-5268 • Email: jhernandez@aclu-sc.org