The Right to Be Out: Sexual Orientation and Gender Identity in America’s Public Schools, Second Edition

393 Pages·2018·2.903 MB·English

by  Stuart Biegel

THE RIGHT TO BE OUT
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THE RIGHT TO BE OUT
Sexual Orientation and
Gender Identity in
America’s Public Schools
Second Edition
Stuart Biegel
University of Minnesota Press
Minneapolis | London
Copyright 2010, 2018 by the Regents of the University of Minnesota
All rights reserved. No part of this publication may be reproduced, stored in
a retrieval system, or transmitted, in any form or by any means, electronic,
mechanical, photocopying, recording, or otherwise, without the prior written
permission of the publisher.
Published by the University of Minnesota Press
111 Third Avenue South, Suite 290
Minneapolis, MN 55401- 2520
http://www.upress.umn.edu
ISBN 978-1-5179-0573-6 (hc)
ISBN 978-1-5179-0572-9 (pb)
A Cataloging-in-Publication record for this book is available at the Library
of Congress.
Printed in the United States of America on acid- free paper
The University of Minnesota is an equal- opportunity educator and employer.
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CONTENTS
Preface to the Second Edition vii
Acknowledgments xiii
Introduction xv
Part I. The Law: The Emergence of the Right to Be Out
1. The Legal Foundations of the Right to Be Out 3
2. Marriage Equality and Its Aftermath 23
3. Emerging Rights of LGBT Students: The Impact of
Litigation and Legislation 53
4. Challenges for LGBT Educators: The Tension between
Rights on Paper and the Realities of the Classroom 79
5. Curriculum, Religion, Morality, and Values 109
Part II. Public Policy: Implementing the Right to Be Out
6. Addressing School Climate: Goals and Best Practices 141
7. Creating Change in the Classroom: Curriculum, Pedagogy,
and LGBT Content 165
8. The Culture of School Sports: From Physical Education to
Interscholastic Athletics 187
9. Confronting the Challenges Faced by Transgender Youth 213
Conclusion 243
Notes 251
Index 341
PREFACE TO THE SECOND EDITION
As an openly gay man who has written and taught about lesbian, gay, bi-
sexual, and transgender (LGBT) issues in an education law context for
more than fifteen years, I have marveled continually at the progress we
have made but found myself deeply saddened all too often after experi-
encing the setbacks that we have faced. And in the decade since the first
edition of The Right to Be Out was published, events seem to have been
moving at warp speed, two steps forward and one step back, or some-
times even three steps forward and four steps back. But in the end, re-
flecting back on the larger picture, it has been a remarkable journey, with
developments and progress that few would have predicted as recently as
eight or ten years ago.
Thus, when I was asked if I would consider a second edition of The
Right to Be Out, I agreed without hesitation, given the importance of doc-
umenting what has transpired and seeking to ascertain where these vol-
atile developments might lead, especially in the fragile environment of
America’s public schools.
It is particularly valuable at the outset to reflect on the parallels be-
tween the LGBT rights movement and other rights movements over time.
These movements include, but are not limited to, the women’s rights
movement, the disability rights movement, the civil rights movement for
African Americans, the Chicano– Latino rights movement, the movement
for greater equality for Asians and Pacific Islanders, and the veterans
rights movement. The movements all have their similarities and their dif-
ferences, but we can learn a great deal from the parallels. As Richard So-
carides, former advisor on LGBT issues for President Bill Clinton, wrote
in The New Yorker magazine in 2015:
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Preface to the Second Edition
Will nationwide marriage equality lead in time to full nationwide accep-
tance, or will [marriage equality activists] discover, like many civil- rights
activists before them, that there is a big gap between legal rights and true
equality? This is a big moment for the [LGBT]- rights movement, and an
important one in which to remember that there is likely more struggle
ahead.
Indeed, conflicting results in national polls exemplify the complexity
of attitudes toward gay and transgender persons during these unsettled
times. For example, although a majority of Americans generally support
legal recognition of same- sex relationships, approximately 30 percent of
the respondents in a 2015 poll who did not identify themselves as LGBT
said that it would unsettle them to learn that their physician or child’s
teacher did. In addition, close to 45 percent said that they would be un-
easy about bringing a child to a same- sex wedding.
Focusing on the positive LGBT- related developments in this coun-
try, however, it is not possible to ignore just how remarkable the recent
progress has been. The most prominent development, of course, has been
the legalization of marriage equality in all fifty states. Accompanying the
road to legalization, as the brand- new chapter on marriage equality in
this second edition demonstrates, there has been an undeniable trend
toward the strengthening of federal and state equal protection laws for
LGBTs. Courts are increasingly recognizing a heightened level of judicial
review in cases where discrimination on the basis of sexual orientation
has been shown, and this trend in equal protection jurisprudence has the
potential to substantially benefit LGBT students, teachers, and parents in
K– 12 public school settings.
Other broad, general developments have had an undeniably positive
impact on the lives of LGBTs, particularly in the area of education. The
repeal of “Don’t Ask, Don’t Tell” in the U.S. military, for example, has pro-
vided major limitations on discrimination against LGBTs in an institution
that employs more teenagers than any other entity in the United States.
As this edition explains, the military embodies a strong educative func-
tion, and the values that are taught in the armed services inevitably im-
pact the values that are disseminated in middle schools and high schools.
In a like manner, the NCAA’s updated policy documents regarding equal
treatment for LGBT student athletes at the college and university level
have had a positive impact on the experiences of gay and transgender
athletes at the K– 12 level.
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Preface to the Second Edition
Moreover, the landmark Seventh Circuit Court of Appeals deci-
sion in Hively v. Ivy Tech Community College— which found by a vote
of 8– 3 in 2017 that the Civil Rights Act prohibited anti-g ay workplace
discrimination— could very well mark a turning point in LGBT employ-
ment discrimination law throughout education communities at all levels.
And as the expanded chapter on transgender issues in this second edi-
tion demonstrates, a growing cultural acceptance of transgender persons,
along with a broad recognition of the challenges that they face, has begun
to influence the strengthening of gender- expansive student rights under
the law and as a matter of policy, with K– 12 faculty and staff in many local
school districts demonstrating a willingness to learn more about this area
and understand the extent of the complexities that remain.
This second edition also documents several specific, K– 12- related
developments that have not received a great deal of attention at the na-
tional level but have made a significant difference at local school sites: a
major case decision in counseling law, the banning of conversion therapy
for minors in ten states, and the mandating of LGBT- positive content in
California’s social studies curriculum. With regard to counseling law, for
example, the Eleventh Circuit Court of Appeals ruled in the 2011 case of
Keeton v. Anderson- Wiley that a student could be prevented from obtain-
ing a master’s degree in school counseling after she indicated to her su-
pervisors at Augusta State that because of her religious beliefs she would
insist on counseling any LGBT student who consulted her to enroll in a
conversion therapy program and seek to become straight. In the years
that followed, ten states plus the District of Columbia banned conversion
therapy for minors by mental health professionals and school psycholo-
gists after learning of the overwhelming consensus by experts in the field
that such programs are highly detrimental and potentially very danger-
ous. And California became a trendsetter in the area of high school social
studies when it adopted the FAIR Education Act in 2011 and, in so doing,
mandated LGBT- positive content and prohibited negative portrayals
of LGBTs in its public school curriculum. As explained in this edition,
LGBTs were added to a list of other identity groups that were already
receiving such protection under the state’s Education Code.
Conversely, all too often, these positive developments have been ac-
companied by negative incidents and trends that were not always specif-
ic to education but have had a deleterious effect on LGBTs in America’s
public schools. In recent years, as this second edition explains, LGBTs
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