Gender and Sexually Variant Students The Legal Responsibilities of Educators

1. Gender and Sexually Variant StudentsThe Legal Responsibilities of Educators This is a guide and over view and legal advice from a competent lawyer is strongly advised Jennifer Ellis, Esquire Maxine Ellis Center for Justice and Equality 717-856-6370 jellis@melliscenter.org

2. Who Am I & Why Am I Here? • Regular employment – Attorney for the Pennsylvania Bar Institute • Nonprofit continuing legal education • Teach and organize programs

3. What Does the Center Do? • Focus on education • Teach different people and groups about the rights and needs of GLTB people.

4. What Does the Center Do? • Lawsuits as a last resort • When all other efforts fail or the organization or school refuses to negotiate

5. Why Avoid Lawsuits? You need the money to educate your kids.

6. Why Sue? All kids have a right to be safe at school.

7. What If Scenarios

8. What If? • Think about the following scenarios • What would you do if the following happened? • Do you know what the appropriate response is legally?

9. What If? What if a male student came to school in a skirt and blouse?

10. What If? What if a female student came to school in overalls and a flannel shirt?

11. Answer • This is a dress code issue • This is an equal protection clause issue • You must treat all of your students the same when it comes to clothing.

12. Answer • You may control dress to the extent that: • The clothing causes a "material and substantial disruption of the educational process" • Someone else’s dress harms the rights of others.

13. Answer • You may not control dress because other students or teachers might be offended or upset by a student's clothing • Such clothing does not constitute a sufficient disruption to justify suppression or punishment.

14. Suggested Response • Recently I was told that a school administrator had the following response when a young man wore a skirt to school. • Our dress code requires skirts to be no less than so many inches below the knee. Please wear a longer skirt next time. The boy did.

15. What If? What if a female student brought another female to the prom? A male student another male?

16. Answer • The prom question is a well-settled one. • You must allow students to bring same-sex partners to dances.

17. What If? What if a student questioned curriculum around same sex sexuality in health class?

18. Answer • You have the right to control your curriculum. • However, a student also has the right to discuss homosexuality, the fact that he or she is gay, the fact that his parents are gay, and so on.

19. Answer • A teacher who wants to teach about gay and lesbian issues should check the curricular policies. • A teacher may mention the word gay or lesbian in an accurate matter, for the most part. • If you plan on teaching gay and lesbian issues, check with the school administrator if you are uncertain as to your school’s policies.

20. What If? What if a student who has two mothers asks to have his mothers identified as his parents on all school records?

21. Answer • If both mothers have a legal relationship with the child you must include both mothers on the records. • In 2002 the Supreme Court of Pennsylvania has held that same-sex, second parent adoption is legal.

22. What If? What if students ask for support and full privileges to form a Gay-Straight Transgender Alliance club in your school?

23. Answer • The Equal Access Act of 1984 applies here. • If you have any club that meets the following requirements:

24. Answer • Noncurriculum related • Student Group • Meets at School You must allow GSTAs to meet at your school too.

25. What If? What if a student reported to the proper school disciplinarian that he was called “faggot” repeatedly when changing classes?

26. What If? What if a teacher uses anti-gay slurs in the classroom and a student complains?

27. What If? What if a student is attacked physically because he is perceived as being homosexual?

28. What if? What if you do not make your school safe for gay, lesbian, bisexual, transgender, questioning youth?

29. Answer All students, regardless of sexual orientation, have a legal right to a safe school. If you are deliberately indifferent to anti-gay harassment, you will be sued and you will be found liable.

30. Answer “If a kid with a gender issue is being harassed and the school doesn’t mobilize, the institution fails” –Anthony Scariano, attorney to 200 Illinois School Districts.

31. Answer • Title IX applies to all schools. • It prohibits harassing conduct of a sexual nature • This includes targeting a lesbian student for physical sexual advances • This includes any conduct that creates a sexually hostile environment.

32. Answer • Title IX does not apply to simple heckling. • However, the Constitution provides a right to equal protection under the law. • Pennsylvania has an ethics code which requires administrators to take sexual-orientation discrimination seriously.

33. Answer • In Pennsylvania the Ethnic Intimidation Act includes GLTB individuals. • If a hate crime occurs in your school you have a duty to report it to the police.

34. Legal Support • Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681; Davis v. Monroe County Bd. of Educ., 526 U.S. 629 (1999) (student-on-student sexual harassment); Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274 (1998) (teacher-on-student sexual harassment). • Nabozny v. Podlesky, 92 F.2d 446 (7th Cir. 1996) (student-on-student sexual orientation harassment.)

35. Suggested Responses • Create a policy that makes it very clear that anti-gay harassment will not be tolerated by staff or students.

36. Anti-Harassment Policy • Set forth the school’s commitment to protect students from harassment and violence and to maintain a nondiscriminatory environment.

37. Anti-Harassment Policy • Identify the types of harassment prohibited. Give examples. • Require staff to report harassment when they learn about it.

38. Anti-Harassment Policy • Explain how to report harassment and to whom to report it. • Describe the various steps the school will take to respond to reported incidents.

39. Anti-Harassment Policy • Include formal complaint procedures. • Prohibit retaliation against persons who report harassment or participate in related proceedings.

40. Anti-Harassment Policy • Ensure that all members of the school community are aware of their rights and responsibilities.

41. Anti-Harassment Policy • Make sure your student codes of conduct and personnel policies address these issues. • These suggestions and the following advice are taken from the Department of Education Office for Civil Rights.

42. If Harassment Occurs • Investigate immediately • Determine the scope and severity • Identify the perpetrators • Evaluate the harm to victims • Determine the appropriate corrective action

43. If Harassment Occurs • Immediately refer the incidents to law enforcement authorities when the acts are violent or criminal. • If the incidents are well known or of public concern, school officials should give a forthright announcement and promise results.

44. If Harassment Occurs • Punish the student harassers as is appropriate. • Discipline any employee harassers as is appropriate. • Engage in ongoing remedial action to prevent reoccurrence. • Increase adult supervision • Monitor victim’s security • Provide emotional and psychological support for the victim as needed.

45. If Harassment Occurs • When appropriate, use informal procedures for resolution. • Peer mediation or counseling but only if • Voluntarily selected by all participants. • Victim has full knowledge of rights for the formal process • School determines that peer involvement is appropriate.

46. If Harassment Occurs • Teach students who engage in harassing conduct more acceptable behavior • Especially if the students are very young • Or the Conduct was not intended to be harmful.

47. A Formal Complaint Process • A formal complaint process is necessary to ensure students and parents have a means of obtaining corrective action. • Federal laws require due process.

48. A Formal Complaint Process Should Include: • Notice to all concerned parties. • Opportunity for a prompt, thorough and impartial investigation, including opportunity to present witnesses and other evidence. • Confidentiality to the extent possible • Notification to complainant of outcome (while respecting privacy laws) • Effective remedies when discrimination is found.

49. Involving the Police • If a crime happens, notify the police. • This includes hate crimes on school property or in connection with off-site school activities. • Consider developing guidelines for involvement of police with less serious instances of harassment if these could lead to retribution. • Develop a line of communication with law enforcement. • If you have on-site security, involve them.

50. Involving the Police • If a crime does occur preserve evidence. • Balance this need however with the need to minimize student exposure to harmful messages. • If harassing graffiti occurs preserve it when • Repetitive or persistent • Located in a place of high visibility • Targeted • Identifies the perpetrator • Contains incitement to violence, threats or intimindations and/or targets a particular group.