Q & A: Adding Sexual Orientation & Gender Identity to Discrimination & Harassment Policies in Schools

Q & A: Adding Sexual Orientation & Gender Identiy to Discrimination & Harassment Policies in Schools

What does it mean to add sexual orientation to a non-discrimination or harassment policy? 

It means that the school district will not allow anyone in the school community to be treated differently or to be harassed because they are gay, lesbian, or bisexual, or because other people think they are. 

Why should we take a stand against sexual orientation discrimination or harassment? 

Students who are struggling with their sexual identity (or a friend's) often face enormous pressures and sometimes violence. The Massachusetts Department of Education found that 23% of gay and lesbian students reported assaults that required medical attention, compared with 3% of their peers, and 22% had skipped school in the preceding year because they felt unsafe, compared to 4% of other students. Non-discrimination and anti-harassment policies tell students that school, at least, is one place where they can be safe. 

Are we required to put sexual orientation in our non-discrimination or harassment policy? 

No. But that does not mean that you can discriminate, or turn a blind eye to harassment. If your school is public, federal law prohibits discrimination and harassment based on prejudice against lesbian, gay, and bisexual students or teachers. If you get federal money, federal law forbids sexual harassment against lesbian, gay, and bisexual kids. Some cities and states also have their own laws that forbid sexual orientation discrimination. 

So why should we add "sexual orientation" to our policies? 

It makes sense to add sexual orientation to your policy, because the best way to make sure that discrimination and harassment don't happen is to make sure everyone in the school knows that the school doesn't allow it. 

Can we add sexual orientation to our policies if the state and federal governments don't cover it? 

If your school (or district) is allowed to develop its own policies on students and employees, then it can add sexual orientation to its non-discrimination policy. 

If we add sexual orientation to our non-discrimination policy, will it also cover discrimination based on gender identity? 

Generally, no. Students who identify themselves as "transgender" typically are harassed because they don't look and act the way other people expect a "boy" or a "girl" to look and act. That isn't covered by policies on sexual orientation discrimination. 

Should we add "gender identity" to our non-discrimination and harassment policies? 

Yes. Transgender kids probably suffer even more harassment and discrimination than gay, lesbian or bisexual students. They need to be protected for all the same reasons. 

Don't policies which ban all forms of harassment take care of the problem? 

A general policy banning harassment is a first step. But far too many students (and adults) think that calling someone a "fag" or making a "limp wrist" imitation is harmless horseplay, and not harassment at all. The policy will work better if you make it clear that it covers harassment based on race, sex, disability, sexual orientation and gender identity. 

Could we solve the discrimination problem with a ban on all discrimination? 

No. It's tough to know what a policy like that would really mean. Some forms of discrimination- like discrimination in favor of those who work hard, or against those who disrupt the classroom- are not wrong at all. That's why discrimination policies usually specify the kinds of discrimination that are not allowed. 

Will children be at risk of being attacked if we protect gay teachers? 

No. Pedophilia is not a sexual orientation. A non-discrimination policy would have no effect on how you enforce the laws which protect children. Besides, research has debunked the old myth that gay men assault children. Studies published in the Journal Pediatrics have found no connection between pedophilia and being lesbian or gay. 

Will my school lose government money if it protects gay students? 

No - just the opposite. Your school could lose money if it doesn't protect lesbian, gay, and bisexual students. The U.S. Department of Education can take away federal money if it finds you are not doing enough to prevent sexual harassment against lesbian, gay and bisexual kids. And students have won damage awards as high as $900,000 because their schools did nothing while they were repeatedly harassed for being gay. 

Policies tell students that SCHOOL, at least, is one place where they can be SAFE.

Will we be opening ourselves to lawsuits if we put sexual orientation in our policies? 

No. If you add sexual orientation to your policies, a student could point to them when claiming that his or her rights were violated. But it is already illegal to treat kids differently because they are gay, or to tolerate severe anti-gay harassment. To avoid lawsuits, everyone in the school should be told that they may not discriminate. School employees are more likely to ignore mistreatment if they don't know what the district's policy is. 

If we adopt this, will we have to teach homosexuality in the classroom? 

No. You don't have to change your cirriculum in any way. It is the school district's job to decide what to teach. A non-discriminatory policy will not change that. 

Schools have a duty to ensure that EVERY STUDENT is safe and welcome.

The Bible says it is wrong to be lesbian or gay. How can schools support lesbian and gay students? 

Some people read the Bible that way, but others don't. While students and teachers have the right as individuals to believe that the Bible condemns (or does not condemn) lesbian, gay and bisexual students, schools have a duty to ensure that every student is safe and welcomed. Schools have to respect everyone's differences, and they may not impose one set of beliefs on everyone. 

I can see having good role models for the gay students, but won't that encourage other kids to be gay, too? 

No. Research shows that sexual orientation exists in everyone at an early age, perhaps even at birth. Adults don't really influence a student's sexual orientation. Instead, having positive role models, both gay and straight, shows students that sexual orientation is just one of many different aspects of a person's identity. 

Would this mean we would have to find out who is gay and who is straight? 

No. It doesn't matter if someone is actually gay or straight. If a person is mistreated because someone else thinks they are gay, they've been discriminated against on the basis of sexual orientation. It doesn't matter if they really are gay or not. 

What about parents who object to "special rights" for gays? 

Non-discrimination policies protect against discrimination for being gay or straight, so everyone has the same right. Besides, the right to be free from violence, intimidation and harassment in school is not a "special right." Neither is the right to keep your job if you do it well. Nondiscrimination means sexual orientation should never be an issue. 

Why should we protect teachers from discrimination? 

The ability to be a good teacher is what should count. People should be judged by job performance, not by things like their race, religion, sex or sexual orientation. Lesbian, gay and bisexual teachers who are afraid of discrimination can't lead ordinary lives. They have to be constantly on their guard to make sure no information about their family slips out. That kind of unnatural pressure compromises anyone's effectiveness as a colleague and teacher. 

Do we need sexual orientation in the non-discrimination policy, if our rules say no one is fired except for poor performance? 

Yes. Even in districts with policies like that, lesbian, gay, bisexual teachers have lost their jobs simply because of their sexual orientation. The same thing happened to other minorities; that's why school districts have policies forbidding race, sex and religious discrimination. 

Will we be condoning homosexuality by welcoming gays and lesbians to our staff? 

No. Welcoming gay, lesbian and bisexual teachers the same way your school welcomes everyone else is simply treating everyone fairly. It doesn't mean you condone anyone's sexual orientation, any more than it means that you condone the religious beliefs or political beliefs of the people you hire. 

Our school was sued by a teacher who claimed race discrimination. Even though she lost, the experience was divisive and expensive. Will this open us up to more? 

No. School boards can be subject to lawsuits from any employee who believes she or he was treated unfairly. Adding sexual orientation or gender identity to a non-discrimination policy won't change that. Instead, it may help prevent lawsuits by giving everyone clear notice that this kind of discrimination is not allowed. 

Gay jokes and limp-wrist imitations have been around since I was in school. What harm are they? 

Racial and religious slurs have been around forever, too. We know they aren't harmless. Neither are sexual orientation slurs. They are demeaning, intended to make people feel inferior. At a minimum, they interfere with learning, so no school should tolerate them. 

CONTACT  ACLU Lesbian & Gay Rights Project 125 Broad Street, 18th Floor New York, NY 10004-2400 (212) 549-2627, getequal@aclu.org.  The Gay, Lesbian & Straight Education Network 121 West 27th Street, Suite 804 New York, NY 10001 (212) 727-0135, glsen@glsen.org, www.glsen.org.