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Law and Policy Issues

  • Elizabeth J. MeyerEmail author
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Part of the Explorations of Educational Purpose book series (EXEP, volume 10)

Abstract

This chapter introduces the reader to the variety of law and policy issues relating to gender and sexual diversity in schools. The focus is on laws at the federal level in both the United States and Canada and their impacts in the experiences of students, teachers, and families. A series of legal cases that have directly impacted the obligations of education professionals and schools are discussed.

Myths and misconceptions about law and policy:
  1. (1)

    There are federal legal protections in the United States and Canada against discrimination based on one’s gender identity or expression and sexual orientation.

     
  2. (2)

    In order for teachers, administrators, and schools to avoid legal liability, it is preferable to avoid talking about controversial issues.

     
  3. (3)

    Education professionals are held to the same legal standards as any other professional in society.

     

5.1 Introduction

Queer (bisexual, lesbian, gay, transgender, or BGLQT) youth are challenging the heteronormative cultures in schools by disclosing their sexual orientation at a younger age and with unprecedented regularity (Cloud, 2005). As the prevailing values of these traditionally heteronormative institutions are questioned, schools have become important battlegrounds in the culture wars between conservatives and progressives as they struggle to reframe public policies and national conversations about education. Unfortunately, many of these youth and their schools have been caught in the crosshairs over this contentious subject. Many conservative politicians and religious leaders vocally oppose same-sex marriage, promote a heterosexual-based abstinence-only sex education curriculum, and challenge local school district efforts to promote diversity education and create safer school climates. In this climate, school administrators and teachers are expected to act as gender and sexuality police and enforce conformity to heterosexual gender norms for the students at their schools (Lugg, 2006). At the same time, many queer youth continue to face discrimination, rejection, and hostility from peers, teachers, and administrators. In the context of this chapter, when I use the term “queer youth” I include not only BGLQT-identified youth, but also youth who are questioning their sexual orientation or gender identity, children of BGLQT parents, and heterosexual youth who have been targeted with homophobic harassment in schools or identify as BGLQT allies. All of these groups have directly felt the harmful impacts of sexism, gender normativity, homophobia, and heteronormativity in schools and have been involved in the cultural battles that have led to the legal cases and policy initiatives addressed here.

5.2 Canada

The current progressive political climate in Canada was achieved through a long and slow process of legislative reform that culminated in the adoption of the Canadian Charter of Rights and Freedoms. This important document was entrenched into the Canadian constitution by the Constitution Act in 1982 (Watkinson, 1999, p. 22). As part of the supreme law of Canada, this document superseded all existing laws, and for the first time the rights of all persons to be treated equally was given constitutional status. Although public education is governed by provincial statutes, all publicly funded institutions must abide by the spirit and letter of the Charter (Watkinson, 1999). This new constitution guaranteed protections for many historically marginalized groups. Sexual orientation, however, was not initially included as a protected class for equality rights under Section 15 of the Canadian Charter of Rights and Freedoms. The original language of this section reads as follows:

Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, religion, sex, age or mental or physical disability. (Canadian Charter of Rights and Freedoms (s. 15), 1982)

Although the federal government wasn’t willing to explicitly include the phrase, “sexual orientation” in the Charter, other provinces had already established human rights codes that included this term. In 1977, the Province of Quebec led the way in the equality movement for sexual minorities by adding “sexual orientation” to its Charter of Human Rights and Freedoms. Ontario followed suit 9 years later. These were the first legal protections that clearly included sexual orientation as a protected class (Hurley, 2005).

5.2.1 Egan v. Canada

Although equality rights supported by the Charter were enforced starting in 1985, sexual minorities were not recognized as a protected class until 13 years later, following a unanimous decision of the Supreme Court of Canada in the landmark case of Egan v. Canada (1995). Although this case was not about discrimination in schools, it addressed the issue of access to public services; specifically, the definition of ‘spouse’ in the federal Old Age Security Act (Lahey, 1999). The ruling provided that discrimination based on sexual orientation was prohibited by s. 15 of the Charter, and the justices observed: “Sexual orientation is a deeply personal characteristic that is either unchangeable or changeable only at unacceptable personal costs, and so falls within the ambit of s. 15 protection as being analogous to the enumerated grounds” (Egan v. Canada,1995, para. 5). Although the justices ruled that such discrimination in this case was “justifiable,” this decision effectively placed the category of sexual orientation on the list of protected groups in the Charter.

This case established the precedent to include sexual orientation as a protected class, and had “sexual orientation” read into the Charter. Every Canadian was guaranteed equal protection from discrimination based on sexual orientation. Although some provinces were slow to add the term “sexual orientation” to their individual human rights codes, this protection was federally guaranteed as a result of this important ruling.

Since the Supreme Court’s 1995 decision in Egan v. Canada, various cases have tested the interpretation and application of the equality rights extended in that case. In the first case in an educational institution after Egan was decided was Vriend v. Alberta (1998). In this case, Delwin Vriend, an employee of King’s College, a Christian college in Edmonton, Alberta, was fired from his position as a lab coordinator, solely because of his homosexuality. King’s College had instituted a position statement condemning homosexuality and requiring all students and employees to comply with the University’s position. Vriend was called on to resign when he confirmed that he was homosexual, but he refused and was fired. He initially brought forward a human rights complaint; however, it was dismissed because the province of Alberta did not have sexual orientation listed as a protected class in its human rights legislation. In this case, the Supreme Court stated that not protecting individuals from discrimination based on sexual orientation was an “unjustified violation of s. 15 of the Canadian Charter of Rights and Freedoms,” and ordered that the words “sexual orientation” be read into provincial human rights codes as a prohibited ground of discrimination (Vriend v. Alberta, 1998, p. 2).

5.2.2 Trinity Western University v. B.C. College of Teachers

The next test came in May 2001 when the Supreme Court of Canada heard a case from Trinity Western University (TWU), a private, religious institution that filed against the British Columbia College of Teachers (BCCT). In this instance, the BC professional teachers’ organization had responded to a request from TWU to be fully responsible for its teacher training program, which it had previously shared with Simon Fraser University. Trinity Western University wanted more autonomy in the program in order to reflect its Christian worldview. The BCCT chose not to accredit this institution because it believed the institution was discriminating on the basis of sexual orientation in its demands on its students. TWU required its students to sign a statement that asserted they would “refrain from practices that are biblically condemned,” including homosexuality (Trinity Western University v. British Columbia College of Teachers, 2001, para. 4).

In its decision, the British Columbia Supreme Court found in favor of TWU, stating that teachers could hold “sexist, racist, or homophobic beliefs” (para. 36). However, the Court also made the following distinction:

Acting on those beliefs, however, is a very different matter. If a teacher in the public school system engages in discriminatory conduct, that teacher can be subject to disciplinary proceedings. Discriminatory conduct by a public school teacher when on duty should always be subject to disciplinary proceedings [and] disciplinary measures can still be taken when discriminatory off-duty conduct poisons the school environment. (Trinity Western v. British Columbia College of Teachers, 2001, at para. 37)

Although this majority opinion sided with TWU and allowed them to continue mandating anti-gay beliefs in their future teachers, the judges made the important distinction between discriminatory behaviors and beliefs, which is common in cases regarding religious freedom. The decision clearly states that teachers may not discriminate overtly against their students but does not address the issue of the subtle and persistent homophobic behaviors that such attitudes can engender and the impact they have on a classroom or school community.

5.2.3 Kempling v. B.C. College of Teachers

The position that teachers may hold discriminatory beliefs as long as they do not act upon them in such a way as to create a “poisoned” school environment was reinforced in another BC case. In February 2004, a BC teacher, Chris Kempling, was suspended for one month for “conduct unbecoming” a teacher because he had published articles that were considered to be defaming of homosexuals in a local newspaper (Kempling v. British Columbia College of Teachers, 2004, para.1). The Christian teacher appealed this decision to the BC Supreme Court, but the court held that the BCCT was within its jurisdiction to suspend him. The court’s rationale for its decision was based on the “wrongful public linking of his professional position to the off-duty expression of personally held discriminatory views in order to lend credibility to those views” (Kempling v. British Columbia College of Teachers, 2004, para. 2).

These cases have established a clear responsibility on the part of schools and their representatives to create learning environments that are free from discrimination. The final case discussed here demonstrates what happened when a school failed to provide such an environment.

5.2.4 School District 44 v. Jubran

Azmi Jubran, a student in Vancouver, was repeatedly called “gay,” “faggot,” and “homo” by his peers in secondary school. In addition to these verbal taunts, he was spit upon, shoved in class and the hallways, and even had his shirt burned. Jubran and his parents made repeated complaints to the school, and, after receiving no satisfactory response, they filed a human rights complaint in November 1996. In April 2002, the Human Rights Tribunal of British Columbia found that the school board in Vancouver had contravened the Human Rights Code, “by failing to provide a learning environment free of discriminatory harassment” (School District No. 44 v. Jubran, 2005, para. 2). This was an important decision because it affirmed the school’s responsibility to protect students from discriminatory behavior, and to respond effectively and consistently to incidents of homophobic harassment. After a series of appeals, the fate of this case was decided on October 20, 2005, when the Supreme Court refused to hear a final appeal, and effectively upheld the lower court’s decision. This was an important decision. The court acknowledged that the school had made some effort to discipline the students who had targeted Jubran individually, but said that it had not done enough. The court stated that the school needed to have communicated its code of conduct to students and provided teachers with resources and training on how to deal with homophobia (CLE Staff, 2005; Meyer, 2007). This case sent a clear message to educators that they must mobilize multiple resources and be proactive when addressing issues of school climate and student safety that relate directly to human rights protections.

As beneficial as the Jubran case was to clarifying the responsibilities of school boards to provide safe learning environments for students, there have been no legal cases in Canada that address the issues related to the rights of transgender youth in schools. However, there are documented cases of transgender youth transitioning in Canadian schools with the support of school personnel. In the Toronto District School Board they created a fully integrated team of professionals who worked closely with the student and her family to provide support and a clear line of communications during her transition. A few key strategies employed by the TDSB team that helped them be relatively successful in helping set the stage for this student’s transition included (1) having a policy that supported the student’s right to transition and the school had the responsibility to “grant him that right and to ensure his [sic] safety and comfort” (p. 41), (2) inviting a social worker with expertise in trans issues to work with the school’s administration to identify potential barriers and solutions, (3) holding informational meetings to inform and educate the core instructional staff working with the student, (4) making contacts with local BGLQT community groups for resources and support, (5) holding meetings with the family, after briefing school staff, to discuss the transition plan, (6) informing the school’s community police officer in order to help develop a plan that could best ensure the student’s physical safety in and around school, and lastly (7) sending a letter out to all school staff announcing the date of the student’s transition and providing basic information about her preferred name and pronouns. Other key advice offered by one of the youth workers from this experience: don’t panic, build trust, inform youth of options, and connect trans youth and their families with community resources (p. 51). For a copy of the letter that was sent and a more detailed description of this case, please see Callender (2008).

As the above listed cases demonstrate, there are legal precedents that exist to protect students from discriminatory behavior in schools. However, many school boards and educators are ignorant of their legal responsibilities and fail to effectively implement policies, programs, and curricular materials that support full inclusion of sexual diversity in school communities.

5.3 United States of America

There are currently no federal protections that explicitly protect gay, lesbian, bisexual, and transgender people from discrimination in the United States. However, under various federal laws presented in this section, sexual minorities are implicitly entitled to the same protection as any other identifiable group. Due to this lack of explicit protection, there can be differing interpretations and applications of the law. In spite of this lack of explicit inclusion in federal protections, a variety of courts across the United States have begun holding school districts accountable for violating the rights of students who are being harassed or who have requested the right to form extracurricular groups that address their needs and interests. The main legal protections that have been applied in these cases include Equal Protection Clause of the Fourteenth Amendment, Title IX of the Education Acts, state non-discrimination laws, and The Equal Access Act.

5.3.1 Federal Protections and Case Studies

The Equal Protection Clause of the Fourteenth Amendment guarantees equal application of a law to all people in the United States (Macgillivray, 2007). An equal protection claim requires the student to show that school officials (1) did not fairly and consistently apply policies when dealing with the student, (2) were deliberately indifferent to the student’s complaints, or (3) that the student was treated in a manner that was clearly unreasonable. The first example of this argument being successfully applied to a case of sexual orientation harassment in schools was in the case Nabozny v. Podlesny (1996) in Wisconsin. In this case, Jamie Nabozny was subjected to violent and persistent anti-gay harassment over several years in his school. As a result of this harassment, he had been hospitalized, dropped out of school, and attempted suicide (Lipkin, 1999). The federal appeals court for that region of the United States, the Seventh Circuit, decided in favor of the student. In their decision, the judges wrote that “…we are unable to garner any rational basis for permitting one student to assault another based on the victim’s sexual orientation…” and the school district settled with Nabozny for $900,000 (Bochenek & Brown, 2001). More recently in a case in California, Flores v. Morgan Hill (2003), the court found sufficient evidence of deliberate indifference to the ongoing sexual orientation harassment of six students in this California School District, which resulted in a $1,100,000 settlement with the students (ACLU, 2004), and the requirement that the school district implement a training and education program for its administrators, faculty, and students (Dignan, 2004).

Title IX is another federal protection that exists to address issues of sexual orientation harassment in schools. It provides statutory protection for student-on-student sexual harassment under the following conditions (1) school personnel have actual knowledge of the harassment, (2) school officials demonstrate deliberate indifference or take actions that are clearly unreasonable, and (3) the harassment is so severe, pervasive, and objectively offensive that it can be said to deprive the victim(s) of access to the educational opportunities or benefits provided by the school (Davis v. Monroe, 1999). Several cases have successfully made the argument that Title IX protects students from peer sexual orientation harassment. For example, a California Federal District Court concluded that

the Court finds no material difference between the instance in which a female student is subject to unwelcome sexual comments and advances due to her harasser’s perception that she is a sex object, and the instance in which a male student is insulted and abused due to his harasser’s perception that he is a homosexual, and therefore a subject of prey. In both instances, the conduct is a heinous response to the harasser’s perception of the victim’s sexuality, and is not distinguishable to this court. (Ray v. Antioch Unified School District, 2000)

In 2000, two important cases were decided that applied Title IX to incidences of homophobic harassment: Ray v. Antioch Unified School District (2000), and Montgomery v. Independent School District (2000). In both of these cases, separate federal district courts (California and Minnesota, respectively) decided that schools could be held liable under Title IX for acting with “deliberate indifference” toward students who have reported persistent and severe homophobic harassment at school. These decisions established important precedents for the cases that followed.

A few years later, a Kansas federal district court considered that the gender stereotyping and the related anti-gay harassment of a student who did not identify as gay was actionable under Title IX (Theno v. Tonganoxie, 2005). The court wrote that “the plaintiff was harassed because he failed to satisfy his peers’ stereotyped expectations for his gender because the primary objective of plaintiff’s harassers appears to have been to disparage his perceived lack of masculinity.” Therefore, they concluded that the harassment of Dylan Theno was so “severe, pervasive, and objectively offensive that it effectively denied (him) an education in the Tonganoxie school district” (Theno v. Tonganoxie, 2005). The district settled with Dylan for a total of $440,000 (Trowbridge, 2005).

One case had a very different outcome. In Doe v. Bellefonte School District (2004), the U.S. Court of Appeals for the Third Circuit based in Pennsylvania, decided for the school district. It determined that campus administrators took Doe’s complaints seriously, instituted a series of steps in response to complaints, and escalated punishment when necessary. Therefore, the district was not deliberately indifferent to the harassment of Doe.

The Equal Access Act (EAA) is another legal protection that is being used successfully to advance education around sexual diversity in schools through extracurricular diversity clubs. Peer support groups, commonly known as gay–straight alliances (GSAs), have become increasingly common in schools (Cloud, 2005; Fischer & Kosciw, 2006). Very little research is available on the efficacy of GSAs, but Fischer and Kosciw (2006) found that the presence of a GSA directly predicted greater school belonging, and indirectly predicted greater academic achievement for sexual-minority youth. Also Szlacha (2003) found in her evaluation of the Massachusetts Safe Schools Program that the presence of a GSA is the aspect “most strongly associated with positive sexual diversity climates” (73). This finding makes intuitive sense when considering the importance of supportive heterosexual peers to a positive experience for sexual-minority youth. However, GSAs are not always met with open-mindedness from students, teachers, administrators, parents, community members, and school boards. Since the late 1990s, there have been several cases of schools trying to exclude these groups from meeting on school grounds. Courts have consistently found that school districts have violated the EAA when banning GSA groups from meeting. Straights and Gays for Equity v. Osseo Area Schools(2006) and White County High School Peers Rising in Diverse Education v. White County School District (2006) serve as two recent examples. Due to the time and courage put forth by the students who work to initiate these GSAs, there are now over 3,000 such groups in schools, and at least one in every state in the United States (Macgillivray, 2007). Whereas students in the United States have had to search for various forms of protection against discrimination based on sexual orientation, Canada has clearly worded provincial and federal human rights codes that offer such protections. In addition to federal protections that exist, some states have non-discrimination laws that can offer students some relief.

5.3.2 State and Local Non-discrimination Laws

State non-discrimination laws that protect individuals based on sexual orientation and/or gender identity only exist in 20 states and the District of Columbia1 (National Gay and Lesbian Task Force, 2007). However, according to a study published in 2006, only nine states and the District of Columbia (California, Connecticut, Maine, Massachusetts, Minnesota, New Jersey, Vermont, Washington, and Wisconsin) have statutes specifically protecting students in schools from discrimination on the basis of sexual orientation and/or gender identity (Kosciw & Diaz, 2006). Students in these states reported significantly lower rates of verbal harassment than their peers. Since this report, several states’ (including Nebraska, Iowa, Kentucky & Wyoming) legislatures have considered bills either expanding or limiting the rights of sexual-minority students (Buchanan, 2006). There are also seven states that have legislation that prohibit the positive portrayal of homosexuality (Alabama, Arizona, Mississippi, Oklahoma, South Carolina, Texas, and Utah), and students in these states reported being verbally harassed at a higher frequency than students from states without such legislation (47.6% as compared to 37.2%) (Kosciw & Diaz, 2006, p. 86).

Two additional cases that were brought before state courts are worth noting here. The first is from the Commonwealth of Massachusetts and the second from the State of New Jersey. The Massachusetts case, Doe v. Yunits (2000) is worth discussing as it is one of only two cases found in the research for this book that addresses the realities of transgender youth in schools. In this case, “Pat Doe,” a 15-year-old transgender 8th grader, won the right to attend school wearing clothing that expresses her identity as a young woman despite being legally recognized as male. Her principal regularly had sent her home to change her attire and began requiring her to check with him to have her clothing approved on a daily basis. It was found that the treatment she received from her school principal violated sex discrimination protections provided by the Commonwealth of Massachusetts and that the school could not place restrictions on her attire based on her sex assigned at birth. The Appeals Court supported the lower court’s decision to issue an injunction requiring the school to permit Pat to attend, “in clothing and accessories that express her female [sic] gender identity” (Doe v. Yunits, 2000, p. 2).

A second case addressing the rights of transgender students in schools was decided by the Maine Human Rights Commission in July 2009 (Curtis, 2009). In this case, a 5th grade student who is legally male, but identifies as a girl, won her claim to allow her to use the girls’ restroom at school. The school had previously assigned her to use the staff single-user restroom after she had been harassed by a male peer who followed her in to the girls’ restroom and called her “fag.” These two state decisions can act as indicators for other schools who are facing the emerging challenges of working with trans youth who are coming out and publicly transitioning while still in the public school system.

The third state decision of interest happened in New Jersey and extended the protections offered by state anti-discrimination laws to cover students in schools. As a result of the complaint brought by a student who had suffered persistent homophobic harassment, the New Jersey Supreme Court held that schools may be held liable under the state Law Against Discrimination for permitting student-on-student bias-based harassment (American Civil Liberties Union-New Jersey, 2007). Chief Justice Zazzali of the N. J. Supreme Court wrote in his decision that “[R]easonable measures are required to protect our youth, a duty that schools are more than capable of performing…[W]e require school districts to implement effective preventive and remedial measures to curb severe or pervasive discriminatory mistreatment” (L.W. v. Toms River Regional Schools Board of Education, A–111–05, 2007). Hopefully, the requirement that schools take preventive and remedial measures will have far-reaching impacts in schools across New Jersey. These cases provide more examples of how the activism of youth with the support of family and community, will have a significant long-term impact on transforming the climate in schools.

In summary, it should be noted that school districts have not fared well under either federal or state standards. The courts have sided with the youth in most of these cases. The impacts of a toxic school experience for queer youth have been clearly documented in the research literature and are also discussed in  Chapter 6. Therefore, it is incumbent upon school districts to take affirmative steps to provide a positive, supportive, and safer school culture for all students. This assumption, however, is not without controversy.

5.4 Safe Schools Policies

As the above listed cases demonstrate, there are legal precedents that exist to protect students from discriminatory behavior in schools. However, many school boards and educators are ignorant of their legal responsibilities and fail to effectively implement and enforce policies that support full equality rights. When they do create inclusive policies, they are often empty promises. As Gerald Walton writes in his article, Bullying and Homophobia in Canadian Schools: The Policies of Policies, Programs, and Educational Leadership, “most school administrators heartily embrace ‘safety’ but avoid the more challenging but pervasive issues of homophobia, heterosexism, and heteronormativity…in this light, promoting school safety and preventing bullying is largely a public relations exercise” (2004, p. 29). This statement accurately describes the state of policy in many schools. The Canadian Charter of Rights and Freedoms was meant to ensure basic human rights for all Canadians and to protect historically marginalized groups from unfair treatment in the public domain. It made important headway in changing cultural attitudes and behaviors to build a more inclusive and proudly diverse society. In Canada’s legal revolution: public education, the Charter, and human rights, Terri Sussel (1995) asserts that the Charter’s impact has led to major changes in the field of education. She highlights that case studies show that since the Charter’s adoption in 1982, legal professionals and the general public have, “tended to have a much higher level of rights consciousness,” and that within schools, new policies and practices that address student and employee rights have been adopted (164). In this section, I examine the policies of two exemplary school boards: Vancouver School Board and Toronto District School Board and how they model positive steps toward the meaningful implementation of equality rights for sexual minorities in schools. There are other school districts in Canada and the U.S. that have developed similar policies, but Vancouver and Toronto have highly visible and active BGLQT communities who have advocated for these programs, and as a result, these districts are viewed as leaders in this area. I also discuss how the language and culture established by these policies can have a positive impact on the education of all students in public schools. Based on the above analysis of recent cases, it is important to look at local school policy to understand if and how it reinforces Federal and state or Provincial protections.

5.4.1 Exemplary Inclusive Safe School Policies

Both the Vancouver School Board and the Toronto District School Board have implemented recent policy changes that make them leaders in providing protections and clear implementation steps for confronting homophobia in schools. In a report for the Toronto District School Board, University of Toronto researchers Goldstein, Collins, & Halder asserted that, “in June of 1999 the Toronto District School Board approved perhaps the most comprehensive anti-homophobia policy in North America” (Goldstein, Collins, & Halder, 2005). One of the most promising features of the policy that Goldstein, et al. highlighted was its commitment that the “ideals related to anti-homophobia and sexual orientation equity be reflected in all aspects of organizational structures, policies, guidelines, procedures, classroom practices, day-to-day operations, and communication practices” (Toronto District School Board, 2000). This policy is exemplary because it includes establishing accountability processes as well as allocating resources for policy implementation (Goldstein et al., 2005). Goldstein and her colleagues do acknowledge some weaknesses in the policy. The main criticism is that it is somewhat vague and not effectively implemented. In their study, they learned that although all TDSB schools are mandated to do some form of anti-homophobia work, many are not doing so. In spite of these criticisms, they conclude that it is “still comprehensive and ground breaking” (Goldstein et al., 2005, p. 13).

A second exemplary school policy is the one implemented by the Vancouver School Board in May 2004. This policy clearly enumerates the individuals protected and the goals of the policy in the following statement:

The Board will provide a safe environment, free from harassment and discrimination, while also promoting pro-active strategies and guidelines to ensure that lesbian, gay, transgender, transsexual, two-spirit, bisexual and questioning students,(LGBTTQ) employees and families are welcomed and included in all aspects of education and school life and treated with respect and dignity. The purpose of this policy is to define appropriate behaviours and actions in order to prevent discrimination and harassment through greater awareness of and responsiveness to their deleterious effects. This policy is also drafted to ensure that homophobic complaints are taken seriously and dealt with expeditiously and effectively through consistently applied policy and procedures. The policy will also raise awareness and improve understanding of the lives of people who identify themselves on the basis of sexual orientation or gender identity. By valuing diversity and respecting differences, students and staff act in accordance with the Vancouver district’s social responsibility initiative (Vancouver School Board, 2004).

The inclusion of gender identity along with sexual orientation is of note as it serves to strengthen responses to all forms of gendered harassment which are not exclusively homophobic or sexual in nature. In addition to this clear language, the policy includes implementation features that demonstrate institutional support for its effective implementation through all aspects of the school communities. Some of these associated strategies include educating school counselors on queer youth issues, appointing a staff person in each school to be a “safe contact” for students, including curricular resources that positively reflect BGLTQ individuals in the curriculum, offering ongoing staff development in anti-homophobia education, creating partnerships with inclusive organizations and BGLTQ communities, having parent advisory councils that reflect the diversity of the district, and translating information for students and parents into the languages spoken in the home (VSB, 2004). In order for a new policy to be successful, such clear steps must be enumerated and supported by all levels of the school board. It is too early to determine the success of this policy, but the intent and goals listed above give good reason to remain optimistic that it will help improve the experience of queer students and staff in that school board.

In contrast to these two school boards, many other Canadian school policies affirm their support of the Canadian Charter, but do not specifically mention or name groups to be protected from discriminatory acts. The importance of including sexual orientation and gender expression as protected classes in school policies cannot be overemphasized. In the absence of this clear language, education professionals tend to err on the side of conservatism and do not effectively intervene in incidents of homophobic harassment. Ian MacGillivray (2003) speaks of the importance of this in his book, Sexual orientation and school policy: A practical guide for teachers, administrators, and community activists. In an interview with an American civil rights attorney, he asks, “So do you think it’s important to spell out those specific classes?” And the lawyer replies,

I think it’s unfortunate that we’ve had to go to that length. I don’t think anyone thinks it’s a great idea that you have to be so specific. But you don’t get the government to enforce rights … unless you’re more specific. We had equal rights for a long time but I’m old enough to remember when I was a little kid traveling in the south and there were black and white drinking fountains. They had the same constitution we did. We needed a civil rights act to be passed that you need to extend those equal rights specifically to certain categories and we now know that you can’t just say that and have gay, lesbian, and transgendered people be respected because it just hasn’t worked. (158)

The strengths of the Vancouver and Toronto policies lie not only in the language, but also in the steps outlined to implement the intent of the policy. Unfortunately, many school boards fall short in offering such protections and proactive strategies for its students, staff, and administrators.

5.4.2 Implications for Educators

From the standpoint of protections, it would appear that students in Canadian schools are attending institutions that will protect them from harassment based on sexual orientation (but not gender identity). As this book reveals on closer examination, these protections are tenuous despite the fact that they are explicitly included in many school policies across the United States and Canada. Research indicates that homophobic name-calling and other related forms of harassment are less prevalent in schools and students feel safer in schools that have inclusive bullying and safe schools policies (Kosciw, Diaz, & Greytak, 2008).

Social justice educators and queer youth advocates have reason to be optimistic that the social reforms that have secured greater equality for BGLQT people in Canada will slowly trickle down into practice at the classroom level and expand in schools across the Unites States. Unfortunately, at this time it is only happening in isolated pockets in certain schools and classrooms. Urban areas generally demonstrate increased tolerance and support of sexual diversity and the Vancouver and Toronto School Districts have demonstrated leadership in this area. School districts across North America should look to these districts in order to develop more inclusive policies and practices based on their models.

In studies on bullying and harassment in schools, it has been shown that such behaviors cannot be effectively stopped unless there is a commitment to a cultural change as well as a community-wide effort to write, adopt, and implement a policy and plan of action. In, Towards bully-free schools: Interventions in action, Glover, Cartwright, and Gleeson (1998) reported that persuading teachers and administrators of the need for a cultural shift was crucial to the success of anti-bullying policies in the schools. Glover et al. go on to emphasize that, “Where there is not a sense of whole-school ownership of anti-bullying policies, there appears to be less evidence of shared positive values” (p. 58). This sentiment is even more important when addressing such a controversial and complex issue as homophobia. Many teachers and administrators feel unprepared to address issues of sexual orientation and gender expression and as a result are often resistant to such major cultural shifts. In order to truly support equality for all youth in schools, school boards, superintendents, principals, teachers, support staff, parents, and students all need to be included in a coordinated community effort to eradicate this form of discrimination. MacGillivray (2004) noted some of the obstacles one school board in the Unites States faced in effectively implementing such a policy. Some of these barriers include lack of support from top officials, lack of enforcement and effective discipline from principals, lack of knowledge by teachers and support staff of the non-discrimination policy, lack of time and money for publications and training, fear of being targeted for supporting the policy (70–73). These are all concerns that emerged as common themes in my research (Meyer, 2008), and ones that schools must address when working toward successful integration of sexual orientation in their existing safe schools or non-discrimination policies.

Another lesson that can be taken from the United States is from the success stories in the state of Massachusetts. Some of the strategies for success that have been observed in the first state-funded safe schools program for gay, lesbian, bisexual, and transgender youth are shared in the book, When the drama club is not enough: Lessons from the safe schools program for Gay and Lesbian students. Perrotti and Westheimer (2001) emphasize the following strategies when working to create safe and inclusive schools for gay, lesbian, and bisexual students: recognize the central role of students, collect and use data effectively, build on the core values of the schools, know the laws and policies that support equity, develop a broad base of support, and create visibility. (20–21)

These successes have been documented in the United States. This is noteworthy since federal protection from discrimination based on sexual orientation does not explicitly exist, and only 14 states have such protections (Cahill & Cianciotto, 2004, p. 14). Often such changes require a large investment of time and money. Although funding can significantly help such efforts, it is important to acknowledge that when there is a commitment from the institution, and a clear position statement from the power structures guiding schools, behaviors will begin to shift to align with those stated ideals. This commitment costs nothing and the benefits are multiple: teachers will feel supported when they send a student to be disciplined for making an anti-gay remark; principals will be role models in keeping the hallways safe from such harassment; bus drivers and cafeteria personnel will help enforce policies effectively when they are clearly informed of their responsibilities. Most educators would agree that it is a priority for their students to feel safe, valued, and supported in schools. To achieve this, the first step that schools must take is to provide a safe learning environment for all students, and that costs nothing.

5.5 Conclusion

Gender and sexual diversity is all around us, although it is often invisible and silenced. Schools cannot make controversies disappear by ignoring them. In many of the legal cases mentioned in this chapter, ignoring the issues exacerbated and escalated the problems. Educators who are responsible for supporting and educating the next generation have a responsibility to create schools and classrooms that value and teach about the diversity that is already present in our communities. Teachers and administrators also have the legal obligation to create safe learning environments that are equitable and free of discrimination. By unlearning the harmful messages repeated through old stereotypes and misinformation, educators have the potential to create and teach more contemporary messages of equality, inclusiveness, and diversity.

Footnotes

  1. 1.

    Minnesota (1993); Rhode Island (1995, 2001); New Mexico (2003); California (1992, 2003); District of Columbia (1997, 2005); Illinois (2005); Maine (2005); Hawaii (1991, 2005, 2006); New Jersey (1992, 2006); Washington (2006); Iowa (2007); Oregon (2007); Vermont (1992, 2007); Colorado (2007); Wisconsin (1982); Massachusetts (1989); Connecticut (1991); New Hampshire (1997); Nevada (1999); Maryland (2001); New York (2002)

References

  1. ACLU. (2004). Settlement fact sheet: Flores v. Morgan hill unified school district. Retrieved March 28, 2006, from http://www.aclu.org
  2. American Civil Liberties Union-New Jersey. (2007). Victory for gay and other students who face harassment. Retrieved October 10, 2007, from http://www.aclu-nj.org/pressroom/victoryforgayandotherstude.htm
  3. Bochenek, M., & Brown, A. W. (2001). Hatred in the hallways: Violence and discrimination against lesbian, gay, bisexual, and transgender students in U.S. schools: Human Rights Watch.Google Scholar
  4. Buchanan, W. (2006, April 1). Bills nationwide address gays in schools [Electronic Version]. SFGate. Retrieved April 12, 2006, from http://www.sfgate.com
  5. Cahill, S., & Cianciotto, J. (2004). U.S. Policy Interventions that can make schools safer. Journal of Gay and Lesbian Issues in Education, 2 (1), 3–16.CrossRefGoogle Scholar
  6. Callender, D. R. (2008). When Matt became Jade: Working with a youth who made a gender transition change in high school. In I. Killoran & K. P. Jimenez (Eds.), Unleashing the unpopular: Talking about sexual orientation and gender diversity in education (pp. 37–52). Olney, MD: Association for Childhood Education International.Google Scholar
  7. The Canadian Charter of Rights and Freedoms (s. 15). Part I of the Constitution Act c. 11 (1982).Google Scholar
  8. CLE Staff. (2005). BCCA: North Vancouver school board liable for homophobic harassment of student. [Electronic Version]. Stay current: The continuing legal education society of British Columbia, April 8. Retrieved April 9, 2005, from http://www.cle.bc.ca/CLE
  9. Cloud, J. (2005). The battle over gay teens. Time, October 10.Google Scholar
  10. Curtis, A. (2009). State rules in favor of young transgender [Electronic Version]. Bangor Daily News. Retrieved July 25, 2009, from http://www.bangordailynews.com/detail/109732.html
  11. Dignan, J. (2004, January 8). Important victory for gay students Gaycitynews.com. Retrieved October 15, 2007, from http://www.gaycitynews.com/site/index.cfm?newsid=17008546&BRD=2729&PAG=461&dept_id=568864&rfi=8
  12. Doe v. Bellefonte Area School District (3rd Cir U. S. App. 2004).Google Scholar
  13. Egan v. Canada (2 S.C.R. 513 1995).Google Scholar
  14. Flores v. Morgan Hill Unified School District, No. 02–15128 (9th Cir. 2003).Google Scholar
  15. Goldstein, T., Collins, A., & Halder, M. (2005). Challenging homophobia and heterosexism in elementary and high schools: A research report to the Toronto district school board. Toronto, ON: Ontario Instituted for Studies in Education of the University of Toronto.Google Scholar
  16. Harris Interactive. (2001). Hostile hallways: Bullying, teasing, and sexual harassment in school. Washington, DC: American Association of University Women Educational Foundation.Google Scholar
  17. Hurley, M. C. (2005). Sexual orientation and legal rights (Current Issue Review No. 92–1E). Ottawa, ON: Library of Parliament.Google Scholar
  18. Kempling v. British Columbia College of Teachers (B.C.D. Civ. 2004).Google Scholar
  19. Kosciw, J., & Diaz, E. (2006). The 2005 national school climate survey: The experiences of lesbian, gay, bisexual and transgender youth in our nation’s schools. New York: Gay, Lesbian, and Straight Education Network.Google Scholar
  20. Kosciw, J., Diaz, E., & Greytak, E. (2008). 2007 National school climate survey: The experiences of lesbian, gay, bisexual, and transgender youth in our nation’s schools. New York, NY: GLSEN.Google Scholar
  21. L.W. v. Toms River Regional Schools Board of Education, A–111–05. (New Jersey Supreme Court 189 N.J. 381, 915 A.2d 535 2007).Google Scholar
  22. Lahey, K. A. (1999). Are we ‘persons’ yet? Law and sexuality in Canada. Toronto, ON: University of Toronto Press.Google Scholar
  23. Lipkin, A. (1999). Understanding homosexuality, changing schools. Boulder, CO: Westview Press.Google Scholar
  24. Lugg, C. A. (2006). Thinking about sodomy: Public schools, legal panopticons, and queers. Educational Policy, 20(1), 35–58.CrossRefGoogle Scholar
  25. Macgillivray, I. K. (2007). Gay-straight alliances: A handbook for students, educators, and parents. New York: Harrington Park Press.Google Scholar
  26. Meyer, E. (2007). Lessons from Jubran: Reducing school board liability in cases of peer harassment. Proceedings of the 17th Annual Conference of the Canadian Association for the Practical Study of Law in Education, 1, 561–576.Google Scholar
  27. Meyer, E. (2008). Lesbians in popular culture. In C. Mitchell & J. Reid-Walsh (Eds.), Girl culture: An encyclopaedia (Vol. 2, pp. 392–394). Westport, CT: Greenwood Press.Google Scholar
  28. Montgomery v. Independent School District No. 709, 109 F. Supp. 2d 1081, 1092 (D. Minn. 2000) 2000).Google Scholar
  29. Nabozny v. Podlesny. (7th Cir. (Wis.) 1996).Google Scholar
  30. National Gay and Lesbian Task Force. (2007, September 17). State nondiscrimination laws in the U.S. Retrieved January 3, 2008, from http://www.thetaskforce.org/downloads/reports/issue_maps/non_discrimination_09_07.pdf
  31. Perrotti, J., & Westheimer, K. (2001). When the drama club is not enough: Lessons from the safe schools program for gay and lesbian students. Boston: Beacon Press.Google Scholar
  32. Ray v. Antioch Unified School District. 107 F. Supp. 2d 1165 A.D.Cal. (2000).Google Scholar
  33. School District No. 44 (North Vancouver) v. Jubran, 2005 BCCA 201 (BCSC 6 2005).Google Scholar
  34. Sussel, T. A. (1995). Canada’s legal revolution: Public education, the charter, and human rights. Toronto, ON: Edmond Montgomery Publications Ltd.Google Scholar
  35. Theno v. Tonganoxie Unified School Dist. No. 464 (2005 WL 3434016 [D. Kan. 2005]).Google Scholar
  36. Trowbridge, C. (2005, December 29). Former student, district settle lawsuit [Electronic Version]. The tonganoxie mirror. Retrieved March 16, 2006, from http://www.tonganoxiemirror.com
  37. Toronto District School Board. (2000). Human Rights Policy (p. 5). Toronto, ON: TDSB.Google Scholar
  38. Trinity Western University v. British Columbia College of Teachers (S.C.R. 772, 2001).Google Scholar
  39. Vancouver School Board. (2004). Lesbian, gay, bisexual, transgender, transsexual, two-spirit, questioning policy. Vancouver, BC.: Vancouver School Board.Google Scholar
  40. Vriend v. Alberta (1 S.C.R. 493 1998).Google Scholar
  41. Walton, G. (2004). Bullying and homophobia in Canadian schools: The politics of policies, programs, and educational leadership. Journal of Gay and Lesbian Issues in Education, 1(4), 23–36.CrossRefGoogle Scholar
  42. Watkinson, A. (1999). Education, student rights and the charter. Saskatoon, SK: Purich.Google Scholar
  43. White County High School Peers in Diverse Education v. White County School District (Civil Action No. 2:06-CV-29-WCO (N. D. Georgia, Gainesville Division). 2006).Google Scholar

Copyright information

© Springer Science+Business Media B.V. 2010

Authors and Affiliations

  1. 1.Dept. of EducationConcordia UniversityMontrealCanada

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