More and more jurisdictions are adopting laws that prohibit and penalize bullying.
Virtually every state has enacted anti-bullying laws that require local school districts to adopt specific measures addressing physical and verbal peer abuse at school. The federal Constitution prohibits schools from discriminating against LGBTQ students in the implementation of these laws.
Many state and local civil rights policies, moreover, expressly protect students from discrimination and harassment based on perceived sexual orientation and/or perceived gender identity.
Even in states and localities without a statute or other policy that explicitly mentions discrimination based on sexual-orientation or gender-identity, various other laws may require schools to prevent and penalize harassment and bullying.
“Negligent supervision” laws can also protect LGBTQ students from harassment by imposing liability on schools for harms students suffered while in the schools’ care.
Students don’t need to be “out” or even LGBTQ to be protected under the law. By guaranteeing “equal protection of the laws” to all people, the Constitution also protects students who are perceived to be LGBTQ, as well as students who associate with LGBTQ people.
Even if the laws in your area don’t prohibit discrimination based on sexual orientation or gender identity, remember that federal law can be used to protect LGBTQ students. The federal Constitution and federal laws apply throughout the country with equal force, regardless of what additional protections may or may not exist at the state or local level. This has been powerfully demonstrated in several landmark civil-rights cases brought by Lambda Legal against school officials for anti-LGBTQ discrimination. These cases were won in federal courts applying federal law. Read more about landmark cases here.
Henkle v. Gregory, a case in Nevada, ended in 2002 with a settlement of $450,000, even though no state law at the time specifically addressed antigay harassment in school. Nabozny v. Podlesny, a case in Wisconsin, ended with a nearly $1 million settlement. In Nabozny, a unanimous federal appeals court specifically noted that school officials could be liable for antigay discrimination under the federal Constitution regardless of what state law provided.
Contact Lambda Legal if you have further questions about LGBTQ rights under the law (866-542-8336 or use our online email form at www.lambdalegal.com/help.)
