Running head: PRIDE AND PREJUDICE 1

Pride and Prejudice: Discrimination Faced by LGBT Youth in the American Education System

Rachel R. Mantos

First Colonial High School

Legal Studies Academy

PRIDE AND PREJUDICE 2

Abstract

This paper examines the discrimination faced by lesbian, gay, bisexual, and transgender (LGBT)

youth in public schools in the American education system. The author looks at the increased

likelihood of LGBT students to be bullied over non-LGBT students, inaction by school officials

on intervening in these cases of bullying, as well as other discrimination from administrators, and

legislation currently set in place which stigmatizes the LGBT community in the schooling

environment. Then, the paper discusses the ways this discrimination continues to follow LGBT

students into adulthood, including job discrimination, bathroom bills, and hate crimes. Finally,

the paper describes solutions to this discrimination, such as passing stronger non-discrimination

legislation and supportive social clubs.

PRIDE AND PREJUDICE 3

Pride and Prejudice: Discrimination Faced by LGBT Youth in the American Education System

Despite the efforts of zero tolerance policies and kindness campaigns in public

elementary, middle, and high schools all across the United States, bullying still remains a

prevalent problem. Some may even argue this problem has only gotten worse in recent years due

to the popularity of the Internet enlarging the issue of cyberbullying. As the popular saying goes,

“kids can be cruel.” Unfortunately, the subjects of this cruelty more often than not find

themselves at the mercy of their tormentors solely because there is something about them that

makes them different from the other kids. For LGBT youth, this is no exception.

As a whole, the LGBT (Lesbian, Gay, Bisexual, and Transgender) community has made

great progress toward equality in recent years, most notably with the nationwide legalization of

same-sex marriage in the 2015 US Supreme court case Obergefell v. Hodges. However, the road

to equality has not been entirely paved yet; much more construction is still needed. This is

especially true in the schooling environment, where LGBT students are at an increased risk of

bullying and harassment than non-LGBT students (LGBT Youth, 2017). The lack of uniform

anti-bullying policies in schools across the nation with explicit protections for LGBT individuals,

as well as the ineffective way instances of bullying toward LGBT students is handled by

administration, enables continued harassment toward these students, which leads to negative

effects that can follow them throughout their lives.

Injustice on School Grounds

LGBT Students are at a Higher Risk of Bullying

A student who sticks out from other kids as “different” in some way, shape, or form is

more likely to become a target of bullying than students whose lifestyle appears to be more

mainstream or “acceptable.” Some of the most frequently bullied students in America are ones
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who are or are perceived to be LGBT. In a National School Climate Survey conducted by the

Gay, Lesbian and Straight Education Network (GLSEN) in 2013, found that out of gay students

from the ages of 13 to 21, nearly 75% reported being verbally harassed at school about their

sexual orientation, and 36% reported being physically harassed ("Bullying: Should states pass

laws requiring educational institutions to implement anti-bullying measures?," 2016). According

to the National Youth Risk Behavior Survey conducted by the Center for Disease Control and

Prevention in 2015, of LGBT students surveyed, 34% had been bullied while at school, 28% had

been cyberbullied, and 10% had been threatened or injured with a weapon whilst at school

(LGBT Youth, 2017). This is highly disproportionate compared to the national average of 21%

of students aged 12-18 reporting instances of bullying in 2015. Of these students, only 13%

reported verbal harassment, and 5% reported physical harassment (Fast Facts on Bullying, n.d.).

Discrimination by Administration

Often when LGBT students suffer harassment for their sexual orientation and/or gender

identity from their peers, they additionally struggle with an administration that does not take

their claims seriously. In the 1990s, openly-gay student Jamie Nabozny was constantly harassed

by his fellow students for his sexual orientation. The bullying he faced included, but was not

limited to physical beating, verbal slurs, and even a mock rape in front of his entire classroom.

Nabozny faced this harrassment with no support from his school for four years, during which

time he needed surgery from being beaten up, and attempted suicide twice, before eventually

dropping out of school and moving to another state. During all this time, he received no support

from his school. Nabozny repeatedly reported these offences to his school officials, yet the

perpetrators were never disciplined. The school principal, Mary Podlesny, even allegedly once

said to Nabozny that “boys will be boys” in response to one of his complaints, and all but
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outright told him the harassment he faced was his own fault for being openly gay. Eventually,

Nabozny would sue the school for failure to protect him from bullying under the Fourteenth

Amendment, the outcome of which will be discussed later (Nabozny v. Podlesny).

Unfortunately, over twenty years later a passive administration still continues to be an

issue in cases of bullying with LGBT victims. A seventeen year old transgender boy in Utah - a

state which up until March of 2017 held statewide laws prohibiting the “advocacy of

homosexuality” in schools, including the discussion of LGBT issues and protections against

bullying targeted to this group - shared his account of the harassment he regularly experiences

from his peers due to his gender. He was dismissed by his school officials upon addressing the

issue, going so far as to tell him the violence he faces is his own fault for being open with his

identity, just as Nabozny had been told (Dwedar, 2017; Whitehurst, 2017).

Prejudice from administration takes other forms as well. Sometimes schools attempt to

limit the freedom of expression of transgender students by forbidding them entrance to school

events, such as dances. One 14-year-old transgender girl in Texas stated her school refused to let

her into the homecoming dance because she arrived in a dress, and they refused to refund the

money for her ticket (Dwedar, 2017).

In many cases transgender students are also prohibited from using the bathrooms and

locker rooms which best match their gender identity. Gavin Grimm is an 18-year-old recent

graduate of Gloucester High School, in Gloucester County, Virginia. When Grimm was 15, he

came out as transgender, to the support of his immediate family and close friends. In order to

fully socially transition, Grimm and his mother notified the Gloucester High School

administrators of his gender identity. Initially Grimm was supported by the administration,

however, after about two months following his coming out, parents of Grimm’s classmates
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began to complain about his use of the boy’s restroom. In response, the Gloucester County

school board passed a motion which required transgender students to use solely private restroom

facilities, and prohibited them access to public restrooms in the building (G.G. v. Gloucester

county School Board).

A lawsuit was filed on Grimm’s behalf, arguing the school board’s policy was in

violation of Title IX, a federal provision prohibiting sex discrimination in schools. The district

court dismissed Grimm’s claim, but the U.S. Court of Appeals for the Fourth Circuit overturned

the lower court’s decision under guidance from the Department of Education, which mandated in

May 2016, under the Obama administration, that public schools must allow transgender students

to use the bathroom that corresponds with their gender identity, as opposed to the one that

corresponds with the gender they were assigned at birth ("Transgender Rights: Should Federal,

State, and Local Governments Take Steps to Protect Transgender Rights?," 2017).

The Board appealed to the Supreme Court, but before they were able to hear the case, the

Trump administration rescinded the previous administration’s directive, so the case was sent

back to the U.S. Court of Appeals for the Fourth Circuit to be reconsidered without the

Department of Education’s guidance. The new ruling still has yet to be determined.

Additionally, since this removal of guidance, 13 other states have introduced bills that would

serve to restrict transgender students’ right to use the restroom (Kralik, 2017).

Along with his initial lawsuit, Grimm filed a motion for preliminary injunction, so the

case would be settled in time before the start of the 2015-2016 school year, but when Grimm

graduated in June 2017, he was still unable to use the proper restroom. Following his

graduation, he withdrew his motion for preliminary injunction and filed a permanent injunction

to prevent the school board from excluding him from school restrooms on any visits he makes as
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an alumni. He also filed a personal complaint with the district court to sue for nominal damages

under the declaration that the school board violated his rights under Title IX and the Equal

Protection Clause (G.G. v. Gloucester county School Board).

Stigmatizing Laws

Currently only 19 states and the District of Columbia have laws which explicitly prohibit

bullying of sexual orientation and gender identity (Dwedar, 2017). Studies have found states

with laws regarding bullying policies in schools have seen a decrease in these instances of

bullying. In “Effectiveness of School District Anti-bullying Policies in Improving LGBT

Youth’s School Climate,” a study by Ryan Kull, he found that out of over 13,000 sampled school

districts, 70% had some anti-bullying policy, yet less than 50% contained language specifically

regarding sexual orientation, and less than 15% with language regarding gender identity.

Schools with policies specifically mentioning protections for LGBT students have a significantly

higher amount of LGBT students reporting that they feel safe in their schools compared to LGBT

students in schools with generic or no policies (Lindemulder, 2017).

Alternatively, there are eight US states which have what are called “no promo homo”

laws, which forbid classroom discussion of LGBT issues, including sexual health and HIV/AIDS

awareness. Generally, these laws are intended to apply just to sexual education classes, yet the

specific wording of the laws tend to be ambiguous and allows them to be applied to the broader

school curriculum. Sometimes these laws are even extended to extracurricular activities and thus

limit the powers of student support groups, such as Gay-Straight Alliances (GSAs). South

Carolina statute § 59-32-30(5) covering the discussion of homosexuality in sexual education

lessons states “the program of instruction provided for in this section may not include a

discussion of alternate sexual lifestyles from heterosexual relationships including, but not limited
PRIDE AND PREJUDICE 8

to, homosexual relationships except in the context of instruction concerning sexually transmitted

diseases.” Another statute in Arizona, § 15-716(c), states “no district shall include in its course

of study instruction which…(1) promotes a homosexual life-style…(2) portrays homosexuality

as a positive alternative life-style…(3) suggests that some methods of sex are safe methods of

homosexual sex.”

Some states take these laws to the extreme, in that they require homosexuality to taught

to students in a negative light, thereby providing students with inaccurate or incomplete

information of LGBT individuals. Alabama State Code § 16-40A-2(c)(8) regarding the state’s

standards for sexual education classes contains a clause declaring “Classes must emphasize, in a

factual manner and from a public health perspective, that homosexuality is not a lifestyle

acceptable to the general public and that homosexual conduct is a criminal offense under the

laws of the state.”

The results of a 2009 GLSEN National School Climate Survey yielded that LGBT

students in states with these types of stigmatizing laws are more likely to be victims of

harassment than LGBT students in states with protective laws. It also found that LGBT students

in these states are less likely to report instances of violence and bullying, and are less likely to

receive support when they do decide to report (GLSEN, n.d.).

Sometimes even in places where protective measures are taken to prevent bullying of

LGBT students, there is still opposition encouraging for their removal. Some critics often insist

that anti-bullying legislation takes away authority from parents. A conservative Christian group

known as The Minnesota Family Council argued against the passage of anti-bullying law passed

by the Minnesota Legislature in 2014 that contained language specifically intended to protect

LGBT students. This organization claimed the law permitted a too-broad definition of bullying,
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thereby restricting students’ right to religious freedom and free speech, among concerns of there

being no requirement of parental notification when instances of bullying occur, or regarding anti-

bullying programs at the school ("Bullying: Should states pass laws requiring educational

institutions to implement anti-bullying measures?," 2016).

It Doesn’t End at the Schoolgate

The oppression LGBT students face does not cease after graduation; it only takes

different forms. In August of 2017, the Department of Justice issued a statement saying LGBT

citizens are not a protected class under Title VII of the Civil Rights Act of 1964, reversing the

interpretation of the previous presidential administration, which had considered them to be

covered under federal non-discrimination statutes.

Employment Discrimination

17 U.S. states have no statewide laws prohibiting discrimination of LGBT individuals in

the workplace. Another 11 states have laws which only protect employees of the state.

Tennessee, Arkansas, and North Carolina all prohibit the passage or enforcement of local LGBT

nondiscrimination laws, but in North Carolina there are some protections for public employees

(Bellis, n.d.). This means in each of these 28 states it is entirely legal for an employer of any

private business to fire an employee, or refuse to hire an applicant, for no reason other than the

fact that they belong to the LGBT community. However, the remaining 22 states and the District

of Columbia do hold statewide protections banning employee discrimination on the basis of

sexual orientation, and all but New Hampshire and Wisconsin also prohibit discrimination on the

basis of gender identity (Calfas, 2015).

Bathroom bills
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A “bathroom bill” has become a popular phrase in society over the last couple of years to

describe a legislative measure which prohibits transgender individuals from using the public

restroom facilities that properly match their gender identity. On March 23, 2016, North

Carolina’s previous governor, Pat McCrory, signed into law the first infamous bathroom bill, the

Public Facilities and Securities Act, popularly known as HB2. Similar to the Gloucester County

School Board’s policy against Gavin Grimm, this statewide law declares all citizens in North

Carolina are required to use the public restroom which corresponds with the gender listed on

their birth certificate, regardless of their actual gender identity. The law also nullifies any local

nondiscrimination ordinances (Kopan & Scott, 2016). Current North Carolina governor, Roy

Cooper, signed a partial repeal of this bill into law in March of 2017, which lifted the ban on

transgender bathroom access. However, it did not fully reverse the Public Facilities and

Securities Act’s other main provision. The new law still prohibits cities and counties from

enacting non-discrimination laws, though it does agree to lift this ban in 2020 (Berman &

Phillips, 2017; Levine, 2017).

Since the initial passage of the North Carolina bill, various similar bills have been

introduced all across the country. 16 states have introduced legislation restricting one’s access to

public locker rooms, restrooms, and other sex-segregated facilities to solely the one that matches

the individual’s assigned sex at birth. 5 of these states have also considered statewide laws that

would nullify all local level non-discrimination legislation (Kralik, 2017).

Hate crimes

The Federal Bureau of Investigations (FBI) defines a hate crime as “a traditional offense

like murder, arson, or vandalism with an added element of bias.” Characteristics that would

incite a hate crime include gender identity and sexual orientation, as well as race, ethnicity,
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religion, and disability status (Hate Crimes, n.d.). All but five states in the U.S. have some form

of hate crime legislation, yet only 30 of the 45 states with these laws include sexual orientation

as a protected characteristic of prejudice-motivated crimes, and only half of these states also

mention gender identity ("Hate Crime Laws: Are Hate Crime Laws Effective?," 2014).

In October 1998, 21-year-old Matthew Shepard was a victim of an especially heinous

hate crime, where he was robbed, maliciously beaten by Russell Henderson and Aaron

McKinney, before the two men left him tied to a fence post in a field by Laramie, Wyoming. He

was found the next day and taken to the hospital, but soon died due to brain damage cause by his

injuries ("Matthew Shepard Foundation," 2015). Henderson and McKinney were convicted of

murder and sentenced to life in prison; however, they were not charged with a hate crime, despite

revealing strong homophobic sentiments during trial. This is because the state of Wyoming did

not have any hate crime statutes, and still remains one of the only states without them to this day.

Moreover, at the time, federal hate crime statutes did not consider sexual orientation yet as one

of its protected characteristics ("Hate Crime Laws: Are Hate Crime Laws Effective?," 2014).

Due to the brutality of Shepard’s murder, as well as the strong homophobic motivation,

demands increased throughout the country for widening protections of hate crime legislation to

include members of the LGBT community. The Matthew Shepard and James E. Byrd Jr. Hate

Crimes Prevention Act (HCPA) was passed in October 2009, which expanded the Civil Rights

Act of 1968 to add gender, gender identity, sexual orientation, and disability status as protected

characteristics from hate crimes ("Hate Crime Laws: Are Hate Crime Laws Effective?," 2014).

Though prejudice-motivated violence towards members of the LGBT community can

now be federally prosecuted as a hate crime, it still continues to be a prevalent problem facing

the community. The U.S. Department of Justice released in March 2013 that hate crimes
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motivated by the victim’s sexual orientation rose to 18% in the years 2007 to 2011, up from 16%

from 2003 to 2006, while hate crimes motivated by gender rose to 18% from 15% ("Hate Crime

Laws: Are Hate Crime Laws Effective?," 2014). More recently, out of the 7,615 victims of hate

crimes in 2016, 1,255 people, or 16.7%, were reported to have been targeted due to their sexual

orientation, and 131 individuals, or 1.7%, were targeted because of their gender identity, as

perceived by the victim (2016 Hate Crime Statistics, n.d.).

It Gets Better

Legal Protections

Currently 18 states and Washington DC have fully enumerated anti-bullying laws,

meaning they explicitly ban bullying on account of a student’s LGBT status. These laws often

use the term “harassment” as well as “bullying”, but occasionally only use one or the other. 14

states and Washington DC have nondiscrimination policies to protect LGBT students from

bullying in schools. All of these states cover both sexual orientation and gender identity, except

for Wisconsin, which only covers sexual orientation (GLSEN, n.d.).

In 1996 the US Court of Appeals for the Seventh Circuit ruled on the case Nabozny v.

Podlesny, stating public schools which failed to effectively protect gay students from targeted

harassment as result of their sexual orientation would be able to be held liable for damages. The

court sided with Nabozny that the school’s failure to protect him from harassment because he

was gay was a violation of the equal protection clause of the Fourteenth Amendment (Nabozny

v. Podlesny).

Pending Legislation

On April 4th, 2017 the U.S. House of Representatives introduced the Safe Schools

Improvement Act. The mission of this bill is “to amend the Elementary and Secondary
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Education Act of 1965 to address and take action to prevent bullying and harassment of

students.” This bill aims to better address issues of bullying in schools as it can negatively affect

students’ academic achievement, as well as foster other negative psychological effects. It names

gender identity and sexual orientation as specific characteristics for which a student might be

bullied. It aims to combat bullying through implementation of new anti-bullying programs and

improved reporting of instances of bullying in schools to other educational agencies. The bill

also states none of its components are to contradict or invalidate any previously-existing federal

or state anti-discrimination law (H.R.1957, 2017).

Additionally, the House of Representatives introduced the BRAVE Act on July 19th,

2017. This bill is designed to make schools more accountable in reporting instances of bullying

that occur to local educational agencies, and aid with equal protection claims to those whose

schools have failed to report and appropriately respond to the bullying cases. Students

discriminated against for their LGBT status are included as protected members of the bill (H.R.

5959, 2017).

The Real Education for Healthy Youth Act was introduced to the House of

Representative on July 28, 2017, and regards providing schools with grants as incentive for

teaching comprehensive sexual education classes. Some of the provisions preventing a school

from receiving these grants include, but are not limited to, sexual education programs which

withhold information on sexually-related topics like HIV, promote gender and racial stereotypes,

and are insensitive or exclusionary to the needs of youth of varying gender identities and sexual

orientations (H.R. 3602, 2017).

The Equality Act is a more explicit piece of legislation in defending LGBT rights. This

act would amend many existing civil rights laws by specifically adding gender identity and
PRIDE AND PREJUDICE 14

sexual orientation to the list of protected demographics from discrimination of public services,

including education. Support for this bill, or one similar to it, is over 70% nationwide, across all

political affiliations. This bill was introduced to Congress on May 2, 2017, and had 241 original

cosponsors, giving it the largest amount of congressional support than any other pro-LGBT bill

(Human Rights Campaign, 2017).

Finally, the Student Non-Discrimination Act aims to “prohibit public schools from

discriminating against any student on the basis of actual or perceived sexual orientation or

gender identity,” or that identity of one with whom a student socializes. It would add sexual

orientation and gender identity to the list of demographics already nationally protected from

discrimination, such as race, sex, disability status, and nationality. While this bill has the support

of various civil rights organizations, it did not pass when introduced to the 114th Congress, and

has yet to be introduced to the 115th Congress (Human Rights Campaign, 2017).

Gay-Straight Alliances

The GSA Network defines a Gay-Straight Alliance (or Gender & Sexuality Alliance)

club as:

A student-run club, typically in a high school or middle school, which provides a safe

place for students to meet, support each other, talk about issues related to sexual

orientation and gender identity and expression, and work to end homophobia and

transphobia.

These clubs serve to function as a support system for LGBT youth, as well as foster an

environment for these marginalized students to meet and socialize with others like them. Some

GSAs also take on the role of an activist, and work to educate their school and surrounding
PRIDE AND PREJUDICE 15

community on LGBT issues, as well as organizing or attending LGBT pride or awareness events

(GSA Network, n.d.).

A study published in the Journal of Youth and Adolescence from the Peabody Research

Institute at Vanderbilt University, found that LGBT students at schools with GSAs reported

experiencing fewer instances of bullying due to their LGBT status, and thus felt safer at school.

The study reported LGBT students at schools without a GSA were 52% more likely to hear

homophobic remarks, 36% more likely to fear for their personal safety, and 30% more likely to

be victimized. One of the study’s publishers, Heather Hensman Kettrey, recommends

implementing GSAs in all high schools as a favorable solution to victimization of LGBT

students. She explains that, according to their data, “having a GSA can send a strong message to

all students that their school is a welcoming place where all people are accepted and that

homophobic acts will not be tolerated.” Though in many areas the suggestion of creating a GSA

may be received negatively due to a more conservative social climate, the right to establishing a

GSA at any school is protected under the Equal Access Act.

Other studies have shown, that not only does the existence of a GSA increase the

immediate safety of LGBT students, but can decrease the likelihood of them turning to substance

abuse or self-harm. Simply having a community where they can be themselves, surrounded by

peers and faculty with unconditional support, severely reduces the risk of these teens becoming

depressed and having suicidal thoughts (Nesbit, 2016).

Conclusion

While progress is certainly being made toward various aspects of LGBT equality across

the nation, LGBT youth, some of the most vulnerable members of the community, still largely

face adversity throughout their daily lives. Many of these teens are still struggling to come to
PRIDE AND PREJUDICE 16

terms with their identities, a feat much more difficult without support. The discrimination they

face not only affects them while they are young, but they often carry their baggage long into

adulthood in the forms of depression and/or substance abuse.

Additionally, this discrimination does not only affect those who are members of the

community, but society as a whole. The misinformation spread in schools about LGBT

individuals not only makes it harder for LGBT students to discover who they are, but also serves

to reinforce negative stereotypes in the minds of their heterosexual peers. Every time a school

official refrains from intervening in a case of bullying, it teaches the perpetrator their behavior

towards their LGBT classmates is acceptable. The teenage harassment that may not look like a

big deal to the principal turns into vicious hate crimes later in life. The high school boy who

once beat up a fellow classmate for being transgender grows up to become a politician who

promotes transphobic bathroom bills. The girl in the hallway who uses gay slurs becomes an

employer who fires her subordinate after learning they are bisexual. In order really make

progress for LGBT equality, it is imperative to teach the country’s youth which actions are and

are not acceptable.

LGBT youth have the same rights as their heterosexual peers to feel receive an education

without fearing for their safety. Legislators have the responsibility to protect these rights by

replacing harmful and stigmatizing policies with ones that explicitly define LGBT students as a

protected class from discrimination and harassment. Furthermore, school faculties have the

responsibility to treat their LGBT students no different than any other, including preventing

violence and harassment from non-LGBT students, and justly punishing perpetrators when these

instances do arise (Dwedar, 2017).

PRIDE AND PREJUDICE 17

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