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II. RECOMMENDATIONS

This report contains evidence of the substantial failure of the government at the local, state, and federal level to protect lesbian, gay, bisexual, and transgender students from human rights violations, including harassment, violence, and deprivation of the right to education. Human Rights Watch calls for immediate actions by the state to end these abuses.


© Patricia Williams for Human Rights Watch, 2001

Key Recommendations

  • All school districts should review their nondiscrimination policies for inclusion of protection based on sexual orientation and gender identity. If such protections are missing, they should immediately amend the policy to include explicit language prohibiting discrimination based on sexual orientation and gender identity.

  • All school districts should immediately evaluate the effectiveness of the implementation of their nondiscrimination policies and, where there exists a gap between policy and practice, take immediate measures to close the gap by training all school staff and students.

  • State legislatures should enact legislation to protect students from harassment and discrimination on the basis of sexual orientation and gender identity.

  • The United States Department of Education should monitor school districts for compliance with the principle of nondiscrimination, intervene where the policies are failing, and include sexual orientation and gender identity in any data collection tools measuring discrimination in education.

  • State governments should ensure that all university programs for the education of state-certified teachers include mandatory training on working with diverse students, including those who are lesbian, gay, bisexual, and transgender and those who are questioning their sexual orientation or gender identity.

  • Federal and state governments should enact legislation to protect administrators, teachers, counselors, other school staff, and all other employees from discrimination in employment on the basis of sexual orientation or gender identity.

Additional Recommendations

To Local School Boards and Individual Schools

Policies Against Harassment and Violence

Schools should review and, where necessary, develop and implement written policies that prohibit discrimination, harassment, and abuse of students based on their actual or perceived sexual orientation or gender identity. At a minimum, these policies should:

  • Explicitly prohibit discrimination and harassment on the basis of sexual orientation and gender identity.

  • Define harassment based on sexual orientation and gender identity to include unwelcome verbal, written, or physical conduct, such as negative name calling or imitating mannerisms, directed at a person because of his or her actual or perceived sexual orientation or gender identity.

  • Prohibit such harassment by all employees and students, providing graduated consequences, proportionate to the seriousness of the harassment, for violations of this policy.

  • Ensure that policies cover harassment by persons who are not employees or students when they are engaged in school-sponsored activities.

  • Establish procedures for addressing complaints.

  • Identify a school official or officials who will be responsible for handling complaints.

  • Ensure that all students have a meaningful opportunity to report instances of harassment.

  • Require staff to report harassment when they become aware of it.

  • Prevent retaliation against those who report harassment or who take part in disciplinary proceedings (for example, as witnesses). Schools should advise students of the steps to take to report further harassment, and school officials should follow up with students to see if they have suffered additional harassment or retaliation.

  • Require a response to all reported incidents of harassment, including those in which a student does not file a written complaint.

  • Require schools to document all incidents of harassment and record the ways in which the harassment was addressed. Documentation should include physical evidence of the harassment, if any. For example, school officials should photocopy threatening or discriminatory letters or notes and should photograph graffiti. When harassment results in physical injuries to the student, the school should arrange for the student to receive medical attention. School officials should note the physical injuries and the need for medical attention in the incident report. If the student consents, school officials should include the medical report and photographs of the injuries among the documentation of the incident.

  • Require referral to law enforcement officials when a reported incident of harassment appears to be a crime.

Other Steps to Provide Protection from Harassment and Violence

  • Provide introductory and ongoing training to all staff-teachers, administrators, support staff, cafeteria personnel, and maintenance workers-on addressing the needs of lesbian, gay, bisexual, and transgender youth.

  • Provide training to all staff on how to intervene to stop harassment that occurs in their presence. Other students may take the failure of staff to respond immediately to harassment as an indication that the staff member approves of the harassment or that the student deserves to be harassed.

  • Ensure that all staff are trained on antidiscrimination laws and policies.

  • Provide appropriate training for noninstructional staff. For example, bus drivers should receive training on addressing harassment that occurs in transit to and from school or other locations. School security officers should receive training that includes information on the settings in which harassment is most likely to occur.

  • Establish and enforce a policy that administrators, teachers, counselors, and other school staff should never disclose information concerning a student's sexual orientation or gender identity to other students, his or her parents or guardians, or the local community.

  • Evaluate existing policies and practices to ensure that the burden of ending harassment is not placed on the student who has been subjected to harassment. For example, schools should not move a harassed student to another class or school unless the student specifically requests such action, and then only after exploring other options to end the harassment.

  • Introduce students to the principles of respect and tolerance at an early age, starting with elementary school. General programs on tolerance and respect should integrate the idea of tolerance and respect for lesbian, gay, bisexual, and transgender persons in an age-appropriate manner.

Protection from Discrimination in Employment

  • In states that have not acted to protect teachers, administrators, and other employees from discrimination in employment on the basis of sexual orientation and gender identity, school districts should provide such protection in written policies and in employee contracts.

Teachers, Administrators, and Other Staff

  • Provide training for faculty and staff on lesbian, gay, bisexual, and transgender issues. Because many schools rely on volunteers to assist in the classroom and with other school activities, they should be included in training sessions on these issues.

  • Provide lesbian, gay, bisexual, and transgender staff who wish to be open about their sexual orientation or gender identity with the institutional support to make them feel safe to do so.

Counseling

  • Provide specialized training for school counselors on lesbian, gay, bisexual, and transgender issues.

  • Establish and implement policies providing confidentiality in discussions between counselors and students. School counselors should advise students of the existence and limits, if any, on counselor-student confidentiality. Policies should include a prohibition on disclosing information concerning students' sexual orientation or gender identity to their classmates, parents or guardians, or local communities. School counselors should be guided by the ethical standards of the American School Counselor Association, the American Counseling Association, the National Board for Certified Counselors, and the National Association of Social Workers.

Access to Information

  • Ensure that guidance counselors, school nurses, school social workers, and school psychologists receive special training on providing support and information for gay, lesbian, bisexual, and transgender youth and their families.

  • Make information about gay, lesbian, bisexual, and transgender issues available in school libraries. This information should include videos, pamphlets, and books, including those written by youth, for the use of students, teachers, and parents.

  • Develop reading lists of books on gay issues, periodically displaying these materials in a visible way.

  • Ensure that library holdings are up to date and present accurate information about lesbian, gay, bisexual, and transgender issues.

  • Ensure that library holdings are catalogued and shelved so that students can access the materials easily. For example, cataloguing systems should use contemporary subject headings such as "lesbian" and "gay" rather than outdated and potentially derogatory terminology such as "homosexual" or "homophile." Books on lesbian, gay, bisexual, and transgender issues shouldbe kept in the same manner as other holdings, preferably on open shelves, rather than being kept in the librarian's office and made available only on request.

  • Ensure that students are able to borrow materials on issues related to sexual orientation and gender identity in a confidential manner. In some schools, for example, students are able to borrow books on these and other adolescent development issues from their counselors rather than checking them out from the school library.

  • Develop local guides to organizations for lesbian, gay, bisexual, and transgender youth, those who are questioning their sexual orientation or gender identity, and their family members.

  • Invite local speakers' bureaus or university groups to make presentations or conduct workshops on lesbian, gay, bisexual, and transgender issues.

Gay-Straight Alliances and Other School-Based Support Groups

  • Develop gay-straight alliances or other in-school support groups for gay, lesbian, bisexual, transgender, heterosexual, and questioning students who want to talk to each other about issues related to sexual orientation and gender identity.

  • Facilitate the formation and operation of these groups on equal terms with other student groups. For instance, schools should appoint faculty advisors, compensating them on an equal basis with other faculty advisors; permit groups to meet on school grounds; allow groups to bring in outside speakers if they wish; and allow groups to participate in schoolwide activities. Schools should accord gay-straight alliances the same privileges that are routinely granted to other student groups.

  • Publicize the existence of these groups on equal terms with other student groups. For example, schools should permit gay-straight alliances to have the use of school bulletin boards and access to the public address system if other groups are permitted such use or access.

Transgender Youth

  • Ensure that all existing and model complaint mechanisms at the school district and individual school level include provisions for complaints by transgender youth.

  • Allow all transgender and questioning youth the means to define themselves in the manner most appropriate for them. This includes allowing them to choose appropriate names and gender classifications.

  • Where schools have dress codes, apply those codes in a gender-neutral manner.

Curriculum

  • Integrate age-appropriate discussion about gay issues into relevant core subject areas, such as literature, history, and current affairs.

  • Include information that is specific to the needs of lesbian, gay, bisexual, and transgender youth in health education on sexuality and sexually transmitted diseases. Such information should not be presented with the implicit message that being gay, lesbian, bisexual, or transgender is itself a health problem.

  • Evaluate materials currently in use to ensure that they do not present outdated information or stereotypical messages.

Recommendations to State Governments

To State Legislatures

  • Enact legislation to protect students from harassment and discrimination on the basis of sexual orientation and gender identity.

  • Enact legislation to protect teachers, counselors, administrators, and other employees from discrimination in employment on the basis of sexual orientation and gender identity.

  • Include sexual orientation and gender identity in hate crimes legislation.

  • In all legislation relating to diversity issues, include lesbian, gay, bisexual, transgender, and questioning youth.

  • Repeal laws and regulations that prevent teachers and service providers from including information relevant to lesbian, gay, bisexual, transgender, and questioning youth in health education on sexuality and sexually transmitted diseases.

  • Repeal legislation that criminalizes consensual sexual relations between consenting adults of the same gender. These laws violate the right to privacy and may be used to justify dismissing teachers, administrators, and staff who provide information or support to lesbian, gay, bisexual, transgender, or questioning youth or disclose their own sexual orientation or gender identity.

  • Provide funding and additional support for lesbian, gay, bisexual, and transgender community groups that serve youth.

To State Governors

  • Until state legislatures have taken the steps outlined above, state governors should issue executive orders to provide such protections.

To State Departments of Education

  • Notify school districts of state and local laws prohibiting discrimination based on sexual orientation, reminding districts that sexual orientation discrimination is prohibited under federal law when it constitutes sexual harassment.

  • Analyze existing legislation, regulations, and policies relating to diversity issues and nondiscrimination on the basis of sex or gender for effectiveness in protecting transgender youth from discrimination based on gender identity.

  • Include in its regular accreditation process a review of each school district's policies and practices to protect students and staff from discrimination, harassment, and violence, including on the basis of sexual orientation and gender identity.

  • Ensure that all existing and model complaint mechanisms include provisions for complaints by lesbian, gay, bisexual, transgender, and questioning youth.

  • Monitor and enforce compliance with state and federal laws that protect students from discrimination, harassment, and violence, including on the basis of sexual orientation and gender identity.

  • Ensure that all university programs for the education of state-certified teachers include mandatory training on working with diverse students, including lesbian, gay, bisexual, transgender, and questioning students

  • If states have continuing education requirements for state-certified teachers, require that some of the continuing education credits address issues related to working with diverse students, including lesbian, gay, bisexual, transgender and questioning students.

Recommendations to the Federal Government

To the Executive Branch

  • Submit the International Covenant on Economic, Social and Cultural Rights, the Convention on the Rights of the Child, and the Convention on the Elimination of All Forms of Discrimination against Women to the United States Senate for ratification.

To the United States Congress

  • Enact federal legislation to protect administrators, teachers, counselors, other school staff, and all other employees from discrimination in employment on the basis of sexual orientation or gender identity.

  • Enact implementing legislation for all human rights treaties ratified by the United States such that persons in the United States could legally enforce the protections of these treaties in U.S. courts.

  • Enact federal nondiscrimination legislation that explicitly prohibits discrimination on the basis of sexual orientation and gender identity.

To the United States Senate

  • Ratify and implement the International Covenant on Economic, Social and Cultural Rights, the Convention on the Rights of the Child, and the Convention on the Elimination of All Forms of Discrimination against Women.

  • Review and withdraw the restrictive reservations, declarations, and understanding that it has attached to the International Covenant on Civil and Political Rights and the Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment.

To the United States Department of Education

  • Explicitly notify school districts that Title IX of the Education Amendments of 1972 and some state and local laws prohibit discrimination based on sexual orientation when the discrimination constitutes sexual harassment. The department can direct school districts to Protecting Students from Harassment and Hate Crime, the 1999 guide developed by the department's Office for Civil Rights and the Bias Crimes Task Force of the National Association of Attorneys General, which provides step-by-step guidance, sample school policies and checklists, and reference materials that can assist school districts in protecting students from discrimination based on sexual orientation.

  • The Office for Civil Rights should increase its monitoring of school districts, vigorously enforcing Title IX and other applicable federal laws against school districts that fail to protect students and employees from discrimination on the basis of sexual orientation that constitutes sexual harassment. When federal legislation is enacted to provide explicit protection from discrimination based on sexual orientation and gender identity, the Office for Civil Rights should monitor compliance and enforce this legislation.

  • Include lesbian, gay, bisexual, transgender, and questioning youth in all regulations and policies related to diversity issues.

  • Analyze all regulations and policies addressing nondiscrimination on the basis of sex or gender for effectiveness in recognizing lesbian, gay, bisexual, transgender, and questioning youth.

  • Ensure that all existing and model complaint mechanisms include provisions for complaints by lesbian, gay, bisexual, transgender and questioning youth.

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