Legal Matters: November 2022
In recent years, LGBTQ+ inclusion in public schools has been the subject of litigation, with many decisions in favor of LGBTQ+ students (e.g., Whitaker v. Kenosha Unified Sch. District No. 1, 2017; Grimm v. Gloucester County School Board, 2020). More recently, however, we’ve seen efforts to oppose LGBTQ+ inclusion through legislation at the state level, often relying upon arguments related to parental rights, privacy, and freedom of religion.
Notably, Florida’s HB 1557 (“An Act relating to Parental Rights in Education,” often referred to as Florida’s “Don’t Say Gay” law) has captured the attention of news media, educators, policymakers, and the public more broadly for the restrictions that it places on discussions related to sexual orientation and gender identity in public schools. This article provides an overview of the legal landscape related to LGBTQ+ students and the curriculum, with particular emphasis on Florida as a case study. It is worth noting that this article focuses on one particular dimension of LGBTQ+ legislation and litigation, while other areas such as athletics and access to health care are active and important as well.
Relevant Terminology and Related Research
Before delving into legislation and litigation, it is important to identify key terms. The umbrella term LGBTQ+ is broad and encompasses many labels relating to sexual orientation, gender identity, and gender expression; for example, some identities include gay, lesbian, bisexual, transgender, non-binary, gender queer, or gender expansive.
LGBTQ+ case law often references data to illustrate the impact of policies and practices and ground courts’ legal analyses (e.g., Grimm v. Gloucester County School Board). As such, research provides a foundation for understanding the legal issues presented in LGBTQ+ court cases and legislation. In their 2019 School Climate Survey, GLSEN found that “59.1% of LGBTQ+ students felt unsafe at school because of their sexual orientation, 42.5% because of their gender expression, and 37.4% because of their gender” (GLSEN, 2019). The same survey found that LGBTQ+ students who experienced harassment as a result of their sexual orientation or gender expression were nearly three times as likely to have missed school in the past month, had lower grade-point averages than students who were not harassed, were nearly twice as likely to be disciplined at school, and had lower self-esteem and higher rates of depression. According to GLSEN’s survey, these consequences can be offset by comprehensive policies, supportive educators, an inclusive curriculum, and access to affinity groups (e.g., Gender and Sexuality Alliances). Not only can school principals serve as a core support for LGBTQ+ students, principals also occupy an important role in creating a safe and welcoming school climate for them. Because educational policies are circumscribed by federal and state law, educational leaders’ may face different realities regarding what is permissible, mandated, or prohibited related to LGBTQ+ inclusion, depending on the status of the law in their jurisdiction.
The Federal Policy Context for LGBTQ+ Students
Florida’s “Don’t Say Gay” legislation emerged within an inconsistent federal context. In 2016, under the Obama administration, the U.S. Department of Education Office for Civil Rights (OCR) issued significant guidance clarifying school districts’ federal obligations related to transgender student inclusion. Specifically, the guidance stated that the prohibition on sex discrimination set forth in Title IX of the Education Amendments Act of 1972 “encompasses discrimination based on a student’s gender identity, including discrimination based on a student’s transgender status” (p. 2). The guidance addressed issues such as bathrooms, student records, student names and pronouns, and privacy. In 2017, the Trump administration rescinded this Obama-era guidance, leaving school districts unclear of their obligations under Title IX. The Biden administration has signaled support for transgender and gender expansive students, including the June 2022 release of a proposed rule clarifying that Title IX protects students on the basis of gender identity and sexual orientation.
Despite the unpredictable changes in approaches by the federal government, courts have issued a number of federal decisions protecting the rights of LGBTQ+ people in recent years. Building on this trend in litigation, during the 2019–20 term, the U.S. Supreme Court held that Title VII’s prohibition on sex-based discrimination within the employment context provides protections to individuals who experience discrimination based on their sexual orientation or gender identity (Bostock v. Clayton County, 2020). Both OCR and courts have relied upon legal interpretations of Title VII to inform its enforcement of Title IX. This overall federal landscape sets the context for state-level legislation.
State-Level Context for LGBTQ+ Students and the Curriculum
Although education law and policy are largely left up to the states, states must craft legislation with federal statutory and constitutional requirements in mind. Within these federal boundaries, state constitutions, statutes, and regulations delineate rights and responsibilities. State constitution education clauses differ by state but address issues such as the obligation to establish and fund public schools, including the age of students or any religious restrictions on state funding. Education within a given state is further circumscribed by the state legislature. This might include legislation that addresses issues such as teacher and administrator licensing requirements, state-level nondiscrimination laws, and the parameters of student discipline under state law. Another critical piece of state legislation is setting the parameters of the curriculum.
Summary of State Laws and Legal Issues to Consider
GLSEN tracks student antidiscrimination laws and finds that 20 states and Washington, D.C., provide some sort of protection from discrimination based on both sexual orientation and gender identity through statutes, regulations, or state guidance. GLSEN also tracks states that have LGBTQ+ affirming curricular standards, of which there are seven: Oregon, Nevada, California, Colorado, Illinois, New Jersey, and Connecticut. Twenty-four states have no inclusive curricular standards, and 16 states have curriculum censorship laws. These curriculum restriction laws place limits on discussions of race, gender, and/or LGBTQ+ people. Recent legislation passed in Florida provides an example for us to consider.
Florida HB 1557
Florida’s recent law states that “[c]lassroom instruction by school personnel or third parties on sexual orientation or gender identity may not occur in kindergarten through grade 3 or in a manner that is not age appropriate or developmentally appropriate for students in accordance with state standards.” The law specifies that “[s]chool district personnel may not discourage or prohibit parental notification of and involvement in critical decisions affecting a student’s mental, emotional, or physical health or well-being.” Some are concerned that this may include discussions of students’ LGBTQ+ status and “outing” students. The law also provides an avenue for families to sue their school district, with fees covered by the district, when they believe that inappropriate classroom instruction has taken place.
Critics of the law have filed multiple lawsuits, arguing that the law is too vague (Equality Florida v. DeSantis, 2022a; Cousins v. School Board of Orange County, 2022). Terms like sexual orientation, gender identity, and classroom instruction are not defined in explicit terms. For example, “Does a student discussing their same-sex parents count as classroom instruction on sexual orientation?” Although the state attempted to provide some clarification in its motion to dismiss the case (Equality Florida v. DeSantis, 2022b), many districts are unsure of how to implement the law and some issues have already emerged, including students and teachers alleging restrictions on graduation speeches, yearbook pages, or the display of pride flags (e.g., Izaguirre & Gomez Licon, 2022). It will be important to follow state/district level guidance related to HB 1557 and ongoing litigation in Florida.
The legal landscape related to LGBTQ+ students is dynamic and may vary by jurisdiction. It is important for educational leaders to be aware of federal and state litigation and legislation, attend professional development opportunities, and engage with the district’s legal counsel, when appropriate. Furthermore, we recommend that school leaders work to build networks of educational stakeholders who are navigating similar legal terrain to decrease feelings of isolation during these politically tumultuous times
Maria M. Lewis, JD, PhD, is an associate professor of education at Pennsylvania State University. She teaches courses on education law and leadership for equity, diversity, and inclusion. Andrew R. Johnson is a graduate student studying educational leadership at Pennsylvania State University. He currently lives and teaches in Chungju, South Korea.
Bostock v. Clayton County, 140 S. Ct. 1731 (2020)
Cousins v. the School Board of Orange County et al., No. 6:22-cv-01312 (M.D. FL, 2002) lambdalegal.org/sites/default/files/legal-docs/downloads/cousins_fl_20220726_complaint.pdf
Equality Florida v. DeSantis, No. 4:22-cv-134-AW-MJF (N.D. FL, 2022a) nclrights.org/wp-content/uploads/2022/03/Equality-Florida-et-al.-v.-DeSantis-et-al.-Complaint.pdf
Equality Florida v. DeSantis, No. 4:22-cv-134-AW-MJF (N.D. FL, 2022b). orangecta.com/z/-vf.0.0.0.23796.-C6A1A2951FFE19DE117A38D9CB26910549695296054420EA5591C9D93F801FD3
Florida House Bill 1557. An Act Relating to Parental Rights in Education. flsenate.gov/Session/Bill/2022/1557/BillText/er/PDF
GLSEN (2020). The 2019 National School Climate Survey. glsen.org/research/2019-national-school-climate-survey
GLSEN Navigator (n.d.). maps.glsen.org
Grimm v. Gloucester County School Board, 972 F.3d 586 (4th Cir. 2020)
Izaguirre A. & Gomez Licon, A. (2022, August 15). Don’t say gay law brings worry, confusion to Florida schools. PBS News Hour. pbs.org/newshour/education/dont-say-gay-law-brings-worry-confusion-to-florida-schools
U.S. Department of Education Office for Civil Rights (2016). Dear colleague letter on transgender students. ed.gov/about/offices/list/ocr/letters/colleague-201605-title-ix-transgender.pdf
Whitaker v. Kenosha Unified School District No. 1, 858 F.3d 1034 (2017)