Lesbian, gay, bisexual and transgender (LGBT) youth across America are facing a crisis in the juvenile justice system as a result of harmful discrimination in their homes, schools and communities. Recent studies demonstrate that continued harassment of LGBT youth in their schools place them at a higher risk for involvement with the system. LGBT youth are more likely to skip school to avoid victimization and in the process face truancy charges. Additionally, other LGBT students end up in the system on assault or disorderly conduct charges after they try to defend themselves against bullying by their classmates. In other instances, LGBT youth are disproportionately targeted by school officials for punishment, often referring them to juvenile court for conduct that is more appropriately handled in school. These experiences unnecessarily prolong the involvement of LGBT youths in the juvenile justice system and often expose them to more restrictive dispositions. In an effort to reduce the number of LGBT youth in the juvenile justice system, more must be done to combat discrimination and harassment in schools.
Schools should be a safe haven for all students as well as a welcoming environment where opportunities are not limited by a student’s sexual orientation or gender identity. However, recent events, including an agreement between a California middle school and the Office for Civil Rights at the Department of Education (OCR) and the Civil Rights Division of the Department of Justice (DOJ), demonstrate that not enough is being done to protect LGBT youth in schools. The agreement between the California middle school and the government agencies followed a complaint from a parent whose 13 year-old gay son committed suicide following chronic sex-based harassment by his peers. The agreement requires the school to research, develop and implement policies that educate students and staff regarding the harmful effects of harassment, as well as educate staff regarding the proper investigation and means of eliminating such harassment. While the result of this agreement is commendable, it raises several disturbing issues relating to the treatment of LGBT youth in schools.
First, while school districts should already be engaged in creating a positive school climate where all students are afforded equal educational opportunities, some are not. Second, as OCR and DOJ made clear in the agreement, they do not have the power to investigate and make recommendations to prohibit harassment or discrimination based on sexual orientation or gender identity. The government is limited by statute to addressing only sex discrimination, as there is no federal statute prohibiting harassment or discrimination based on sexual orientation or gender identity. As a result, while an enforcement mechanism exists to regulate harassment and discrimination in schools, it is not explicit about doing so to protect LGBT youth. Consequently, LGBT youth continue to be at risk for harassment and discrimination in school, which subsequently increases their risk of entering the juvenile justice system. This devastating chain of events can be stopped if federal legislation, such as the Student Non-Discrimination Act, is passed.
The Student Non-Discrimination Act, which is pending in the House and Senate, would prohibit schools from discriminating against students based on sexual orientation and gender identity. Additionally, it would prevent discrimination against any public school student because of the actual or perceived sexual orientation or gender identity of a person with whom a student associates or has associated. With passage of this legislation, government organizations such as OCR and DOJ would have the authority to investigate and make recommendations to prohibit harassment or discrimination based on sexual orientation and gender identity. Such tools would make a significant contribution to ending harassment and bullying of LGBT youth in schools and could ultimately help reduce the number of LGBT youth that find themselves in the juvenile justice system.
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