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Sonia Katyal

A Dream Deferred: Disturbing Recent Setbacks for LGBT Rights, and an Older Court Victory that Provides Hope


Tuesday, October 5, 2010

September was a rough month for LGBT America. Admittedly, there were two major victories regarding the "Don't Ask, Don't Tell" policy: First, Judge Victoria Phillips ruled that the military's policy violated constitutional rights to free speech and due process. Then, three weeks later, another judge ordered the military to reinstate an officer who had been discharged under the policy. However, an Act that would have repealed "Don't Ask, Don't Tell" lost in Congress, at the hands of a filibustering John McCain.

In addition, last week opened with the most emotionally-charged of Supreme Court cases--a case involving Reverend Phelps of the Westboro Baptist Church, which has devoted itself to targeting the funerals of soldiers, gay people, and people with AIDS. (Its website is repellently entitled "").

As one writer for the Huffington Post recounted, Phelps and his crew went largely unnoticed when they first started out targeting funerals for AIDS victims and gay people, including Matthew Shepard. It was only when Phelps and his cohort began targeting soldiers' funerals that people started truly paying attention. Ultimately, over forty states and Congress passed statutes designed to keep the group at a distance and to allow mourners to grieve in peace. Now, the Supreme Court is weighing in on the First Amendment aspects of the Phelps dispute.

By the week's end, still more LGBT-oriented news had taken front and center, as a shocking number of young boys had recently committed suicide as a result of anti-gay bullying. In this month alone, the press reported four suicides by LGBT-perceived teens as a result of anti-gay bullying. (And one website counters that the number is actually much higher: Its list counts nine such teens, from different parts of the country.)

Finally, there was the tragic story of Tyler Clementi. The Rutgers first-year student threw himself off of the George Washington Bridge after his roommate broadcast his same-sex sexual encounter on the Internet.

It is important to note that this is not a new problem. But it is also important to note that historically, the problem is not as intractable as it seems. In this piece, I will explain how one teen who suffered such bullying -- while his school turned a blind eye -- found justice in federal court.

LGBT Bullying in Schools: The Horrifying Statistics, and the Consequences

To say that LGBT youth are at risk for bullying and suicide is a gross understatement. The statistics are frankly staggering.

According to the Trevor Project, LGBT youth are four times more likely to kill themselves. Over a third of LGBT-identified youth have attempted suicide. Half of all transgender kids report seriously contemplating suicide. And, a full nine out of ten LGBT-identified youth have experienced harassment at school.

And this isn't just a problem that is limited to LGBT-identified youth; many more kids face similar bullying simply for being perceived as gay or lesbian, irrespective of their actual identity.

LGBT Youth in Court: A Case Where a Bullied Teen Litigated and Won

The issue of anti-gay bullying is not a new one, and adults suffer from it too. Fortunately, employment discrimination law has evolved to protect those who are LGBT-identified (or perceived as such) in the workplace, and cases challenging anti-LGBT workplace harassment now go back decades.

Unfortunately, however, the law has been slower to protect LGBT-identified and LGBT-perceived teens in the classroom. Indeed, one landmark case, Nabozny v. Podlesny, was filed as recently as 1995.

The story of the openly-gay Nabozny is strikingly similar to what we hear from many teens today. In middle school and high school, he was repeatedly attacked in school, yet his tormentors remained unpunished.

When Nabozny was thirteen, a group of male students performed a "mock rape" on him, commenting that, being gay, he should "enjoy it." His parents repeatedly complained. Amazingly, administrators did nothing, telling them that "Boys will be boys," and that if he was "going to be so openly gay," then he should "expect" this kind of harassment.

The harassment continued into high school, to the point that a district attorney advised Nabozny to take some time off from school. Nothing changed when he returned: Daily, Nabozny was attacked, shouted at, and pelted with steel nuts and bolts, and his books were knocked from his hands. In one incident, he was punched and kicked by a group of eight boys, finally collapsing from internal bleeding weeks later.

Unsurprisingly, Nabozny attempted suicide, multiple times, until his family moved to a different city. Years later, he sued the school district, contending that the school had violated his rights to equal protection on the basis of his gender and sexual orientation. More details on the case can be found in Carlos Ball's excellent book From the Closet to the Courtroom. Ball reports, for instance, that Nabozny's first lawyer wanted him to downplay the "gay" element to his bullying -- presenting his case as a harassment case, not an anti-gay harassment case in particular. At the time, no LGBT youth had ever succeeded in suing a school for protection from anti-gay harassment. But Nabozny bravely insisted on bringing just such a suit, because he had wanted to draw attention to the problem of LGBT bullying in the classroom. And fortunately, Lambda Legal stepped in to represent him.

Nabozny lost before a federal district court, but that ruling was reversed, in a unanimous opinion, by the U.S. Court of Appeals for the Seventh Circuit, and remanded back to the district court to be tried. The case eventually settled for nearly a million dollars.

On the day after the trial ended, as Ball reported, Pat Logue, Nabozny's lawyer, announced that, "[C]ountless gay kids have paid a high price for abuse. Now the tables have turned, and it is prejudice that is costly." In the decade following Nabozny, Ball reports, school districts paid over $4 million dollars for failing to protect LGBT students who faced harassment, reported the harassment to their schools, and were not protected.

Other districts took note, and the outcome of Nabozny's case caused a sea change at the courts and schools. Meanwhile, over time, organizations and resources for LGBT youth multiplied and grew, both in real space and on the web. In addition, more and more statutes were enacted, and guidelines promulgated, protecting students from mistreatment on the basis of sexual orientation.

And yet today, fifteen years after Nabozny was filed, the harassment continues, and kids are still killing themselves. Why?

Nabozny Represented Progress -- But Now "Neutrality Policies" Present a New Threat

One reason surely lies with a handful of organizations that actively resist teaching LGBT tolerance in schools. These groups decry school bullying generally, but they resist any mention of the prejudice and hatred that lead certain teenagers to be targeted, let alone any explanation of why the prejudice and hatred are wrong. As a result, in many school districts, anti-gay bullying--which should be a health-and-safety issue--has become enmeshed in the larger culture war.

For instance, Focus on the Family quotes its "education analyst" Candi Cushman as saying, "Once schools are forced to include special categories for things like sexual orientation or gender identity in their policies, that has been used as leverage to get in homosexual-themed curriculum for kids as young as kindergarten [and to introduce] so-called ‘diversity training' for high school students and teachers….So this just becomes a gateway for homosexuality promotion in the school."

Meanwhile, Minnesota's Parents Action League (PAL) -- located in the Anoka-Hennepin School District -- teaches that "homosexual behavior exposes participants to many life-threatening health risks…." and supports an event sponsored by Exodus International, the "Day of Truth," that espouses the possibility of converting from gay to straight through Christian prayer. The Day of Truth -- not coincidentally-- takes place one day before the annual Day of Silence that is meant to draw attention to the problem of LGBT harassment.

In 2009, PAL successfully pressured the school district to adopt the following "neutrality" position: "Teaching about sexual orientation is not a part of the District adopted curriculum; rather, such matters are best addressed within individual family homes, churches, or community organizations. Anoka-Hennepin staff, in the course of their professional duties, shall remain neutral on matters regarding sexual orientation including but not limited to student-led discussions."

In practice, however, it turns out the "neutrality" policy is far from neutral: "The policy is general to all issues of sexual orientation, but is only used against LGBT issues. In practice, no one is expected to remain neutral on the straight identity," said one former district teacher. "The gay population is the only population that the district singles out in policy, creating stigma in how staff perceive and even interact with gay kids."

The school district maintains that, despite the "neutrality" policy, it is training teachers on LGBT bullying and, and including some LGBT materials in its bullying policies. Yet the policy has left teachers unable to meaningfully engage with their students on the central reason their students are dying: anti-gay bullying.

Last year, four students in the Anoka-Hennepin School District killed themselves.

Upon hearing of the spate of suicides, the Minnesota Family Council (MFC), another anti-gay organization, responded, "The real issue is homosexual indoctrination," and stated that the real reason the students killed themselves was because of their "unhealthy lifestyle," not anti-gay bullying.

If parents, too, follow the lead of groups like these, and fault their children for their orientation, the consequences can be dire. The Trevor Project reports that in families that are highly rejecting of gay, lesbian or bisexual lifestyles, LGB-identified kids are eight times more likely to attempt suicide than LGB-identified peers who reported no or low levels of family rejection.

Unlike in Nabozny's day, we now have state statutes targeting anti-gay bullying -- and the federal Safe Schools Act is currently making its way through Congress. However, an increasingly vociferous movement from the religious right decries any mention of LGBT issues in public schools as yet another example of "homosexual indoctrination," and calls for "neutrality" policies like the one described above. Yet neutrality, in such contexts, quickly becomes another word for tolerating the intolerant. If administrators and teachers are forbidden from naming and targeting the reason for the abuse LGBT kids suffer, it will only continue. The bullies and bigots will continue to say their piece, but counterspeech will effectively be forbidden.

As the Supreme Court's Phelps case underlines, words, do in fact, cause legally-cognizable harms. If we think about anti-gay bullying as just a general social issue that involves bullying, for any reason, we miss the legal, cultural and social complexities that plague our LGBT students in particular. We also miss the fact that our LGBT kids are the most at risk--more so right now, it seems, than any other social group. And in this way, in the guise of being neutral, these neutrality policies wind up victimizing the very young people who need protection most of all.

Sonia K. Katyal is a Professor of Law at Fordham Law School and the author of Property Outlaws (published by Yale University Press, 2010) with Eduardo M. Peñalver, a Professor of Law at Cornell Law School.

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