Administrators have the important responsibility of making sure programs under their responsibility comply with all applicable laws and school district or institution policies. Administrators, coaches, athletes, and parents should be aware of the ethical, professional and legal obligations of the educational institution and the rights of students and staff. The following information is presented to assist educators in reviewing existing policies and procedures or developing new policies where none exist.
Legal RequirementsSchools have a legal obligation to protect lesbian, gay, bisexual and transgender (“LGBT”) athletes and staff from harassment and discrimination. This obligation may flow from several different sources and exists whether or not a school has a policy specifically prohibiting this conduct. Allowing harassment and discrimination on the basis of sexual orientation or gender identity to go unchecked can expose schools and employers to serious legal and financial liability. Adopting and effectively implementing an anti-discrimination and anti-harassment policy that explicitly includes sexual orientation and gender identity helps schools protect against such potential liability, while, at the same time, ensuring that all athletes can participate without free of harassment and discrimination.
State LawCurrently nine states plus the District of Columbia have statutes prohibiting discrimination or harassment on the basis of sexual orientation in educational facilities. The nine states are: California, Connecticut, Maine, Massachusetts, Minnesota, New Jersey, Vermont, Washington, and Wisconsin. In addition, California, Maine, Minnesota, and New Jersey also explicitly prohibit discrimination or harassment on the basis of gender identity.
In addition, 16 states and the District of Columbia, as well as hundreds of municipalities prohibit discrimination on the basis of sexual orientation in employment. The 16 states are: California, Connecticut, Hawaii, Illinois, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Hampshire, New Jersey, New Mexico, New York, Rhode Island, Vermont, and Wisconsin. California, Hawaii, Illinois, Maine, Minnesota, and Rhode Island also explicitly prohibit discrimination on the basis of gender identity.
Federal LawEven in states that do not have specific non-discrimination laws dealing with sexual orientation or gender identity, courts increasingly have been willing to step in where necessary to protect students and employees who are harassed or otherwise discriminated against on the basis of sexual orientation, gender stereotypes, or gender identity.
Equal Protection Clause of the 14th Amendment (applies to public schools and colleges). All athletes and staff have a federal constitutional right to equal protection under the law. This means that schools have a duty to protect lesbian, gay, bisexual, and transgender (LGBT) athletes and staff from harassment on an equal basis with all other athletes and staff. If school officials failed to take action against anti-LGBT harassment because they believed that the LGBT athlete should have expected to be harassed, because they believed that the LGBT athlete brought the harassment upon him or herself simply by being openly LGBT, or because the school was uneducated about LGBT issues and was uncomfortable addressing the situation, then the school has failed to provide equal protection to the student.
Title IX (applies to all schools and colleges that receive federal financial assistance). Title IX of the Education Amendment Acts of 1972 prohibits discrimination based on sex in education programs and activities receiving federal financial assistance, this includes athletic programs. Although Title IX does not prohibit discrimination on the basis of sexual orientation, sexual harassment directed at an LGBT student is prohibited by Title IX if it is sufficiently severe and pervasive that it results in denial or limitation of the victim's ability to participate in or benefit from the program. Title IX also prohibits gender-based harassment, including harassment on the basis of a student's failure to conform to stereotyped notions of masculinity and femininity. This would include things like harassment against a female wrestler because she is perceived to be too masculine or harassment of a male figure skater because he is perceived to be too feminine.
As described above, schools have a legal obligation to respond to harassment and discrimination of LGBT athletes whether or not they have a policy prohibiting such conduct. A comprehensive anti-harassment policy that makes clear that harassment and discrimination on the basis of sexual orientation is prohibited - and ensuring that all staff and athletes are aware of and trained about this policy - is an effective way for schools to ensure they are fulfilling their legal obligations and avoiding potential liability.
Statements of Professional ObligationA statement of professional obligation or position provides the philosophical rationale for educational initiatives addressing issues related to sexual orientation. Every organization should have such a position statement. The following statements are excellent models.
American School Counselor AssociationThe professional school counselor is committed to the inclusion and affirmation of youths of all sexual orientation. The professional school counselor supports consciousness raising among school counselors and increased modeling of inclusive language, advocacy, and equal opportunity for participation for all. This is done to break through individual, social, and institutional behaviors and expectations limiting the development of human potential in all populations.
National Association of School NursesGay and lesbian youth often experience harassment and ostracism, and sometimes violence. They suffer increased rates of suicide. Gay and lesbian youth, as well as other high-risk students, have increased exposure to HIV infection and other sexually transmitted diseases, as well as substance abuse. All individuals are equally deserving of respect and fair treatment. Discrimination based on sexual orientation is difficult to eradicate and all students are entitled to a safe and supportive environment. It is the position of the National Association of School Nurses that all students, regardless of sexual orientation, are entitled to equal opportunities in the educational system. The school health nurse should be involved in fostering a safe environment, demonstrating
an acceptance of diversity.
National Association of School PsychologistsThe National Association of School Psychologists recognizes that students who are of a minority sexual orientation, or are perceived to be, are at risk of a number of dangerous and destructive behaviors as well as harassment, discrimination, and low self-esteem. A successful program to address these issues educates both those who discriminate and those who are discriminated against because of sexual orientation. This education can occur on a number of levels: intervention with individual students, schoolwide in-service training, and modeling behaviors attitudes and behaviors by school psychologists in daily interactions with all students and staff. Any program designed to address the needs of sexual minority youth should also include efforts to educate parents and the community through involvement with other organizations committed to equal opportunity for education and mental health services for all youth. Schools can only be truly safe when every student, regardless of sexual orientation, is assured of access to an education without fear of harassment or violence.
The School Social Work Association of AmericaGay, lesbian, bisexual, and questioning youth (GLBQ) are at greater risk for suicide; physical and verbal harassment; exposure to sexually transmitted diseases, including HIV/AIDS; and substance abuse. GLBQ youth also often experience emotional and physical rejection by family and community, increasing their feelings of inadequacy and low self-esteem. GLBQ youth require strong and caring advocates within the school setting to cope with these situations and to assist them in developing strong personal identities. SSWAA believes that a safe school environment should be provided to all students. Students should be able to attend school without fear of threat, harassment, or denial of rights. To achieve this positive school climate, SSWAA supports educating both students and staff regarding misconceptions about GLBQ youth, appropriate ways to address discrimination and harassment, and the importance of mutual respect.