International law establishes that every person, including youth, has the right to protection from physical and mental violence, the right to freedom from discrimination, the right to an education, and the rights to freedom of expression, association, and peaceful assembly.
Article 24 of the International Covenant on Civil and Political Rights (ICCPR) guarantees the right of the child "to such measures of protection as are required by his status as a minor." The United States did not take any reservations to article 24 when it ratified the ICCPR in 1992. In addition, both the ICCPR and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which the United States ratified in 1994, prohibit cruel, inhuman, or degrading treatment.139
The U.S. Constitution prohibits states from depriving any "person of life, liberty, or property, without due process of law."149 The U.S. Supreme Court has held that this provision, known as the Due Process Clause, imposes "no affirmativeobligation on the State to provide the general public with adequate protective services." The court explained:
[N]othing in the language of the Due Process Clause itself requires the State to protect the life, liberty, and property of its citizens against invasion by private actors. The Clause is phrased as a limitation on the State's power to act, not as a guarantee of certain minimal levels of safety and security. . . . Its purpose was to protect the people from the State, not to ensure that the State protected them from each other.150
The Court has recognized, however, that the state may assume a duty to care for an individual in limited circumstances. For example, the state must provide adequate medical care to incarcerated or detained persons. Similarly, it must ensure the "reasonable safety" of involuntarily committed mental patients.151
However untenable it may be to suggest that under the Fourteenth Amendment a state can force a student to attend a school when school officials know that the student will be placed at risk of bodily harm, our court has concluded that local school administrations have no affirmative substantive due process duty to protect students.154
Despite the reluctance of the courts to expand the state's limited duty to provide protection from private violence, the court observed in Nabozny that the argument is not foreclosed to future litigants, noting:
There is evidence to suggest that Nabozny informed school officials that he was at risk, and that the officials took no action-for years. Moreover, in some cases schools arguably serve as temporarycustodians of children, limiting parents' ability to care for children, or children's ability to care for themselves. Many parents and students rely on schools to provide students with food, shelter, discipline, guidance, and medical care, in addition to an education, while the students are on campus. In this case, it seems that Alton High even fulfilled a police function by providing a "police liaison" officer. Depending upon the state law, a student may be compelled to attend school. In a small town the state law requirement may be tantamount to a requirement that the student attend specific schools. The extent of a school's control over a student also might vary with the student's age; schools control kindergarten students more than high school students. It may be, therefore, that in some cases a school is in a custodial relationship with its students.155
Even if a due process challenge is not foreclosed, the protections it would afford fall well below the protection that international law affords to children under article 24 of the ICCPR and article 19 of the Convention on the Rights of the Child. In addition, students in the United States face formidable challenges in contending that their schools have an affirmative constitutional duty to offer protection. They are much more likely to succeed on other constitutional bases, particularly the denial of the equal protection of the laws. The Supreme Court observed in DeShaney that "the State may not, of course, selectively deny its protective services to certain disfavored minorities without violating the Equal Protection Clause."156 In Nabozny, the student ultimately prevailed in his suit against the school district on this alternative constitutional ground.157
Even if the Due Process Clause of the U.S. Constitution does not require teachers and school administrators to protect students from violence, federal law obligates school officials to address some forms of harassment and violence. To a large extent, however, federal law offers lesbian, gay, bisexual, and transgenderstudents only limited remedies for the harassment and violence many suffer at the hands of other students.
The first limitation results from the United States' federal structure. Congress' powers are limited to specific areas; powers not expressly granted by the Constitution are reserved to the states.158 As an application of this constitutional principle, Congress does not have general authority to regulate crime or to legislate in other areas that are traditionally regulated by state or local government.159
As with the Commerce Clause, the Spending Clause gives Congress considerable latitude to regulate state and even private activity. Often, in fact, the spending power allows Congress to achieve indirectly what it would be unable to do by direct regulation. The courts have held that Congressional authority to spend for the "general welfare" enables it to legislate over matters that are not authorized by any of its other powers, and Congress may attach conditions to its funding even if the effect of the conditions is to regulate state or private conduct.169
Even to the extent it is permitted to do so under the Constitution, Congress has not yet enacted measures to provide protection from violence anddiscrimination based on sexual orientation. In June 2000, the Senate passed a bill that would expand federal hate crimes legislation to include crimes based on real or perceived sexual orientation, gender, and disability; the House did not act on the proposed legislation.170 On September 10, 1996, the Senate narrowly defeated the proposed Employment Non-Discrimination Act, which would have prohibited employment based discrimination based on sexual orientation. Similar measures to prohibit employment discrimination on the basis of sexual orientation were introduced in both houses of Congress in 1997 and 1999 but never made it to a vote.171 Congress has not considered any measures that would expressly extend protection to students who are harassed or discriminated against on the basis of their sexual orientation.
Limited Protection Under Title IX
Despite the lack of explicit protection from discrimination based on sexual orientation, students who are the victims of harassment and discrimination based on sexual orientation or gender identity have some protection under Title IX of the Education Amendments of 1972, which prohibits sex discrimination in federally funded educational programs.172
C A gay male student was subjected to years of verbal harassment and physical assaults that included a mock rape at the hands of male classmates.177
When harassment takes the form of mock rapes or threats of rape, sexual advances, or lewd sexual comments, it constitutes sexual harassment for Title IX purposes even though the harassment is directed at lesbian, gay, bisexual, and transgender students because of their sexual orientation.181
But even sexualized harassment may not be enough, as illustrated by a March 2001 employment discrimination case that underscores the need for explicit protections against discrimination based on sexual orientation. In that case, a gay employee demonstrated that he was subjected to "a panoply of markedly crude, demeaning, and sexually oriented activities." For example, "coworkers would insert their fingers into his anus through his clothing, grab his crotch, and caress his face and touch his body `like they would do to a woman.'" Nevertheless, thefederal appellate court dismissed his claim under Title VII of the Civil Rights Act of 1964, finding that the employee "did nothing to show . . . that the harassment was based on his gender."182 As with Title IX, Title VII protects against discrimination based on sex but does not prohibit discrimination based on sexual orientation.
[A] student's grades may go down or the student may be forced to withdraw from school because of the harassing behavior. A student may also suffer physical injuries and mental or emotional distress.
A decision by the student or her parents to change schools can also support a finding that a hostile environment exists.185
Finally, the student must show that the school administrators knew of and were deliberately indifferent to the abuse.
Only Massachusetts, Vermont, and Wisconsin expressly prohibit harassment against gay and lesbian students.189 In addition, California and Connecticut prohibit discrimination in public schools on the basis of sexual orientation.190
All human beings are born free and equal in dignity and rights.
-Universal Declaration of Human Rights, article 1
Article 26 of the ICCPR reaffirms that "all persons are equal before the law and are entitled without any discrimination to the equal protection of the law." The guarantees of equality before the law and the equal protection of the laws prevent a government from arbitrarily making distinctions among classes of persons in promulgating and enforcing its laws. As the Human Rights Committee, responsible for interpreting the obligations of the ICCPR, has concluded, article 26 "prohibits discrimination in law or in fact in any field regulated and protected bythe public authorities," whether or not the legislation covers a right guaranteed in the covenant.194
C Article 26 provides that "the law shall prohibit any discrimination."
These prohibitions on all forms of discrimination do not mean that every distinction is impermissible. As the Human Rights Committee has observed, "not every differentiation of treatment will constitute discrimination, if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate under the Covenant."197
The U.S. Constitution guarantees all persons equal protection of the laws.207 As the U.S. Supreme Court has noted, however, the right to equal protection "must co-exist with the practical necessity that most legislation classifies [ people] for one purpose or another, with resulting disadvantage to various groups or persons."208
We must conclude that Amendment 2 classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else. This Colorado cannot do. A state cannot so deem a class of persons a stranger to its laws.214
Similarly, the federal court observed in Nabozny, "We are unable to garner any rational basis for permitting one student to assault another based on the victim's sexual orientation . . . ."215
Eleven states and the District of Columbia have enacted legislation offering protection against discrimination in private employment on the basis of sexual orientation.216 Eighteen states and the District of Columbia prohibit suchdiscrimination in public employment.217 Minnesota and the District of Columbia are the only jurisdictions that explicitly prohibit discrimination in private employment on the basis of gender identity, although Iowa extends this protection to its state employees.218
International law guarantees all persons, including children and adolescents, the right to freedom of expression. Guaranteed in both the ICCPR and the Convention on the Rights of the Child, this right encompasses the "freedom to seek, receive, and impart information and ideas of all kinds."222 As the European Court of Human Rights has observed, "[f]reedom of expression constitutes one ofthe essential foundations of a democratic society and one of the basic conditions for its progress and for each individual's self-fulfilment."223
The state may only limit freedom of expression insofar as necessary for the protection of the rights or reputations of others, national security or public order, or public health or morals.227 Under both conventions, these limitations must be strictly construed.
The Protection of Public Morals
Those who attempt to restrict expression relating to sexual orientation and gender identity often claim that they do so out of a need to protect public morals. This justification is invoked with particular frequency when youth may be the recipients of expression with lesbian, gay, bisexual, or transgender content.
The Committee finds that it cannot question the decision of the responsible organs of the Finnish Broadcasting Corporation that radio and TV are not the appropriate forums to discuss issues related to homosexuality, as far as a programme could be judged as encouraging homosexual behaviour. . . . As far as radio and TV programmes are concerned, the audience cannot be controlled. In particular, harmful effects on minors cannot be excluded.229
Articulated in a case decided more than twenty years ago, the view that a television or radio program with gay content "encourag[es] homosexual behaviour" and has "harmful effects on minors" is based on an understanding of sexual orientation that has been rejected by the major health and medical health professions. In the United States, the American Academy of Pediatrics, the American Counseling Association, the American Psychological Association, the National School of Social Psychologists, and the National Association of Social Workers have all taken the position that homosexuality is not a mental disorder.230 In addition, there is no merit to the notion that lesbian, gay, bisexual, and transgender role models "cause" youth to become gay, lesbian, bisexual, or transgender.231
The Protection of Public Order
Freedom of expression may also be restricted for the protection of public order. For example, the right to free expression does not extend to defamatory speech or speech that incites to violence.238 International law also permitsrestrictions on speech that is racist or otherwise "constitutes incitement to discrimination."239
The U.S. Constitution provides strong protection for the freedom of expression. Under the First Amendment, "Congress shall make no law . . . abridging the freedom of speech . . . ."241
As we see it, a teacher who comes out actually helps promote tolerance. Although an "out" teacher on campus may cause some heated discussion, the result of such speech is the promotion of tolerance: this teacher shows that teachers can be gay and be role models. Further, the removal of a teacher would not be countenanced because her race or religion caused some consternation on campus. In the same vein, a teacher should not be . . . forced to hide her sexual orientation because of homophobia.252
Fifteen states criminalize consensual sexual relations between adults of the same sex, classifying these acts as "sodomy," "sexual misconduct," "unnatural intercourse," or "crimes against nature." In 1986, the Supreme Court upheld Georgia's sodomy law, ruling that laws prohibiting private consensual sex between adults do not violate the U.S. Constitution.253
International law recognizes the rights of everyone to freedom of association and peaceful assembly with others, subject to the same restrictions that may be placed on the freedom of expression: the state may limit the freedom of association only insofar as necessary for the protection of the rights or reputations of others, national security or public order, or public health or morals.6 Similarly, the First Amendment protects the "right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends."7
The rights of the lawful, orderly group to meet are not dependent upon the fact that other students may object to the ideas expressed. All students enjoy free speech constitutional guarantees. It is the school's responsibility to maintain discipline in order that all student groups be afforded an equal opportunity to meet peacefully without harassment. The school must not allow a "hecklers' veto."8
Similarly, the right to freedom of association protects lesbian, gay, bisexual, and transgender teachers and administrators who join gay rights groups, attend events such as gay pride rallies, or are open about their relationship with their partners. In the case of Weaver v. Nebo School District, for example, the federal district court noted, "To the extent the School District may be punishing Ms. Weaver by not assigning her as a volleyball coach because of her private relationship with another woman, this action is unconstitutional."9
The right to education is recognized in both international and domestic U.S. law. Internationally, the right is set forth in the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, and the Convention on the Rights of the Child. These instruments place an obligation on states to endeavor to make public education available and accessible to all youth.
education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expeditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instrument in awakening a child to cultural values, in preparing him for later professional training, and in helping him to adjust formally to his environment . . . .11
Under article 26 of the ICCPR, the United States is obligated to respect the entitlement of every person "without any discrimination to the equal protection of the law." Consistent with this nondiscrimination provision, when a state provides education for its children, it may not arbitrarily deny an education to particular groups of children. The state may make distinctions among groups of individuals only to the extent that those distinctions are based on reasonable and objective criteria. In particular, the state may not make distinctions among people on the basis of a quality, such as sexual orientation, that is inherent to individuality and humanity and a deeply rooted element of one's sense of self.12
In the course of our research, Human Rights Watch interviewed students who reported suffering harassment or violence, not because of their actual or perceived sexual orientation, but because of their gender identity, expression, or appearance. Young men talked of being perceived as "effeminate," "passive," or "unathletic." Young women reported being called "too aggressive," "butch," "having an attitude," or "a troublemaker." Some of these students identify as gay, lesbian or bisexual and they perceive that their sexual orientation-though not explicitly cited-triggered these attacks. Some of the students we interviewed identify as heterosexual but simply fail to conform to gender-based stereotypes and are coping with harassment and violence for failing to conform to rigid rules dictating how young women and young men "should" act, speak, walk, dress, compete, and look. Still others are questioning their gender identity and may, as adults, identify as transgender.14
take all appropriate measures: (a) To modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women.16
The Committee on the Elimination of Discrimination against Women recognizes the pervasiveness of such stereotyping.17 Elaborating on theimportance of rejecting stereotyped roles for men and women and its contributing role in gender-based violence, it has observed:
Traditional attitudes by which women are regarded as subordinate to men or as having stereotyped roles perpetuate widespread practices involving violence or coercion, such as family violence and abuse, forced marriages, dowry deaths, acid attacks and female circumcision. Such prejudices and practices may justify gender-based violence as a form of protection or control of women. The effect of such violence on the physical and mental integrity of women is to deprive them of equal enjoyment, exercise and knowledge of human rights and fundamental freedoms.18
Although the committee focused on violence against women, the phrase "gender-based violence" includes violence against both men and women so long as the violence is motivated by gender. Thus, men as well as women may be targeted for violence because they fail to conform to stereotypes based on gender or because they claim a gender identity which fails to conform with societal expectations.
The committee noted that "gender-based violence, which impairs or nullifies the enjoyment by women of human rights and fundamental freedoms under general international law or under human rights conventions, is discrimination within the meaning of article 1 of the Convention."19 The committee expressly recognized violations of the right to life, the right not to be subject to torture or cruel, inhuman or degrading treatment or punishment, the right to equal protection according to humanitarian norms in times of conflict, the right to liberty and security of person, the right to equal protection under the law, the right to equality in the family, the right to the highest attainable standard of physical and mental health, and the right to just and favorable conditions of work.20
to adopt the interpretation that women asylum seekers who face harsh or inhuman treatment due to their having transgressed the social mores of the society in which they live may be considered a "particular social group" within the meaning of Article 1 A (2) of the 1951 United Nations Refugee Convention.22
Similarly, the European Parliament adopted a resolution in 1984 recognizing that women who "transgress social mores" are a social group for the purposes of the Convention Relating to Refugees.23
The growing jurisprudence recognizing gender-based persecution triggered by women failing to conform to societal expectations and the committee's analysis of gender-based violence, provide the basis under international law for protecting both men and women from discrimination and persecution based on their gender identity or expression. Harassment and violence against students who fail to conform to society's preconceptions of how young men and women should act is a violation of not only the rights enumerated by the committee, but also the right to education and the right to freedom of expression.
Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when ... or (3) such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile, or offensive work environment.25
The lead case in the area of how discrimination based on gender identity may rise to the level of sex discrimination under Title VII is Price Waterhouse v. Hopkins.26 In the Price Waterhouse case, the employee, Ann Hopkins, was denied partnership despite a stellar employment record with the firm. When the firm failed to reconsider her for partnership the following year, Hopkins filed a claim for sex discrimination. The defendant argued that she was denied partnership based on a negative assessment of her "interpersonal skills."27 In deciding this case, the Supreme Court recognized that the legislative history was bizarre, as "sex" as a grounds on which to forbid employment discrimination was added by opponents of the bill with the intent of defeating the legislation.28 The Court then found that gender stereotyping established the link to the plaintiff's sex that is required under Title VII. Specifically, the Court noted a partner's advice to the plaintiff that she "[w]alk more femininely, talk more femininely, dress morefemininely, wear make-up, have her hair styled, and wear jewelry."29 The Court went on to state:
It takes no special training to discern sex stereotyping in a description of an aggressive female employee as requiring "a course in charm school." Nor . . . does it require expertise in psychology to know that, if an employee's flawed "interpersonal skills" can be corrected by a soft-hued suit or a new shade of lipstick, perhaps it is the employee's sex and not her interpersonal skills that has drawn the criticism.30
The connection between sex or gender stereotyping and sex discrimination was explored more exhaustively by a federal appeals court in Doe v. City of Belleville, Illinois.31 In Doe, one of the plaintiffs was a teenage heterosexual male who wore an earring in one ear. He was called "fag" and "queer" and asked if he was a "girl or a guy"; he was threatened with anal rape; and he had his testicles grabbed by a heterosexual male co-worker. The court answered the question of whether a heterosexual male can sexually harass another heterosexual male in the affirmative, consistent with the Supreme Court's decision in Oncale. The court noted that one of the plaintiffs "was apparently singled out for . . . abuse because the way in which he projected the sexual aspect of his personality (and by that we mean his gender) did not conform to his coworkers' view of appropriate masculine behavior."32 The court quoted the Supreme Court's observation in Price Waterhouse that:
We are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group, for "`in forbidding employers to discriminate against individuals because of their sex, Congress intended to strike at the entirespectrum of disparate treatment of men and women resulting from sex stereotypes.'"33
The court also emphasized that when the content of the harassment is explicitly sexual-as in Doe, where the harassers grabbed the plaintiff's testicles, threatened to rape him, and debated whether he would scream when raped-the plaintiff meets his burden of proving that he suffers harassment because of his sex. The court's holding is consistent with prior decisions in which "it is generally taken as a given that when a female employee is harassed in explicitly sexual ways by a male worker or workers, she has been discriminated against `because of' her sex."34 Rejecting the view that same-sex sexual harassment must be based on the harasser's attraction to the victim, another federal court observed in 1996:
Title VII does not require that sexual harassment be motivated by attraction, only that it be because of sex; indeed harassment, like other forms of victimization, is often motivated by issues of power and control on the part of the harasser, issues not related to sexual preference.35
But in the absence of explicit protection from discrimination based on sexual orientation and gender identity, some courts have required a higher burden from lesbian, gay, bisexual, and transgender individuals who are subjected to same-sex harassment. Most recently, a federal court of appeals held in March 2001 that a gay employee who had endured "a panoply of markedly crude, demeaning, and sexually oriented activities" did not demonstrate discrimination based on his gender because he could not show that his harassers were motivated by sexual desire or by "`general hostility to the presence of [men] in the workplace.'"36 Dissenting from the panel's decision in the case, one judge noted:
If his attackers were women or if they were gay men-or if Rene were a lesbian attacked by straight men-there is no question that plaintiff's openly gay status would not be a complete defense to his Title VII claim. That Rene's attackers were ostensibly heterosexual men is no basis for a different outcome-the attack was homosexual in nature, and his case involves allegations of sexual abuse that female employees did not have to endure.37
In a positive development, the U.S. Department of Justice announced, following the Oncale decision, that it would use existing federal civil rights laws to take legal action against businesses and state and local governments that engage in employment discrimination against transgender persons, based on employer's "expectations of what a male employee should act like, or how he should hold himself out."38
[I]f harassment is based on conduct of a sexual nature, it may be sexual harassment prohibited by Title IX even if the harasser and the harassed are the same sex or the victim of the harassment is gay or lesbian. If, for example, harassing conduct of a sexual nature is directed at gay or lesbian students, it may create a sexually hostile environment and mayconstitute a violation of Title IX in the same way that it may for a heterosexual student.40
139 International Covenant on Civil and Political Rights (ICCPR), arts. 24, 7, opened for signature December 19, 1966, 999 U.N.T.S. 171 (entered into force March 23, 1976); Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, art. 16, adopted December 10, 1984, 1465 U.N.T.S. 85 (entered into force June 26, 1987). The United States did enter a reservation to article 7 of the ICCPR, noting:
140 Convention on the Rights of the Child, arts. 3,19, adopted November 20, 1989, G.A. Res. 44/25, U.N. Doc. A/RES/44/25 (entered into force September 2, 1990).
141 See Concluding Observations of the Committee on the Rights of the Child: Japan, paras. 19 and 40, Committee on the Rights of the Child, 18th sess., U.N. Doc. CRC/C/15/Add.90 (June 5, 1998); Concluding Observations of the Committee on the Rights of the Child: Costa Rica, paras. 9 and 16, Committee on the Rights of the Child, 4th sess., U.N. Doc. CRC/C/15/Add.11 (October 18, 1993); Concluding Observations of the Committee on the Rights of the Child: Jordan, paras. 15 and 23, Committee on the Rights of the Child, 6th sess., U.N. Doc. CRC/C/15/Add.21 (April 25, 1994). Established by the Convention on the Rights of the Child, the committee receives and comments on reports by states of the measures they have taken to comply with the convention. Its comments and general recommendations provide authoritative guidance on the scope of the rights established by the convention.
The Committee on the Elimination of Discrimination against Women has interpreted a similar provision of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), adopted December 18, 1979, 1249 U.N.T.S. 13 (entered into force September 3, 1981), to extend to "all kinds of violence" against women, including private violence. See General Recommendation No. 19, Violence against Women, Committee on the Elimination of Discrimination against Women,, 11th sess., U.N. Doc. CEDAW/C/1992/L.1/Add.15 (1992).
142 See Rachel Hodgkin and Peter Newell, Implementation Handbook for the Convention on the Rights of the Child (New York: UNICEF, 1998), p. 246.
143 See Vienna Convention on the Law of Treaties, art. 18, concluded May 23, 1969, 1155 U.N.T.S. 331 (entered into force Jan. 27, 1980). Although the United States has not ratified the Vienna Convention on the Law of Treaties, it regards this convention as "the authoritative guide to current treaty law and practice." S. Exec. Doc. L., 92d Cong., 1st sess. (1971), p. 1. The International Court of Justice has recognized that the convention "may in many respects be considered as a codification of existing customary law." Fisheries Jurisdiction Case (United Kingdom v. Iceland), 1974 I.C.J. 3, 18; see also Advisory Opinion on Namibia, 1971 I.C.J. 16, 47. No international tribunal has explicitly found article 18 of the Vienna Convention to be a declaration of existing customary international law, however.
144 An examination of the preamble is an appropriate means of identifying a treaty's object and purpose. See Advisory Opinion on Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, 1951 I.C.J. 15; Austria v. Italy, 4 Y.B. Eur. Conv. on H.R. 116, 138 (1961); The Effect of Reservations on the Entry into Force of the American Convention on Human Rights (Arts. 74 and 75), Advisory Opinion OC-2/82 of September 24, 1982, Inter-Am. Ct. H.R. (Ser.A) No. 2 (1982).
145 See Convention on the Rights of the Child, arts. 28, 24(1).
146 Ibid., art. 39.
147 General Comment 17, Rights of the Child (Art. 24), paras. 3, 5, Human Rights Committee, 35th sess., 1989.
148 This conclusion is strengthened by the fact that most U.S. students have not only the right to attend school but also the duty to do so: Most U.S. states have compulsory attendance laws that obligate students to attend classes until the age of sixteen. See "Right to Education" section, below.
149 U.S. Constitution, Amendment XIV, § 1. The Due Process Clause is part of the Fourteenth Amendment, one of three constitutional amendments enacted after the U.S. Civil War in order to protect the rights of newly freed slaves. The Fourteenth Amendment also provides that no state shall "deny to any person within its jurisdiction the equal protection of the laws." Ibid. For a discussion of this provision, known as the Equal Protection Clause, see "Right to Nondiscrimination and Equal Protection" section, below.
150 DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189, 195-96 (1989).
151 See Estelle v. Gamble, 429 U.S. 97, 103-4 (1976) (duty to provide adequate medical care to incarcerated prisoners); Revere v. Massachusetts General Hospital, 463 U.S. 239, 244 (1983) (duty to provide medical care to suspects in police custody who have been injured during arrest); Youngberg v. Romeo, 457 U.S. 307, 314-25 (1982) (finding a duty to provide involuntarily committed mental patients with services necessary to ensure their "reasonable safety" from selves and others and suggesting an obligation to provide them with "adequate food, shelter, clothing, and medical care").
152 DeShaney, 489 U.S. at 192-93. The Court's opinion noted, "In March 1984, Randy DeShaney beat 4-year-old Joshua so severely that he fell into a life-threatening coma. Emergency brain surgery revealed a series of hemorrhages caused by traumatic injuries to the head inflicted over a long period of time. Joshua did not die, but he suffered brain damage so severe that he is expected to spend the rest of his life confined to an institution for the profoundly retarded." Ibid., p. 193.
153 Most U.S. courts have rejected arguments that compulsory school laws or a school's in loco parentis status create a custodial relationship that is sufficient to trigger a duty to protect. See D.R. v. Middle Bucks Area Vocational Technical School, 972 F.2d 1364, 1369-73 (3d Cir. 1992) (en banc), cert. denied,113 S. Ct. 1266 (1993); Doe v. Hillsboro Independent School District, 113 F.3d 1412, 1415 (5th Cir. 1997) (eighth-grade girl raped by school custodian); Sargi v. Kent City Board of Education, 70 F.3d 907, 911 (6th Cir. 1995) (bus driver did not seek medical attention for student who collapsed due to heart failure); J.O. v. Alton Community Unit School District 11, 909 F.2d 267, 272 (7th Cir. 1990) (students alleged that they were sexually assaulted by teacher); Dorothy J. v. Little Rock School District, 7 F.3d 729, 732 (8th Cir. 1993) (mentally retarded student sexually assaulted by another mentally retarded student in school shower); Maldonado v. Josey, 975 F.2d 727, 731-33 (10th Cir. 1992), cert. denied, 113 S. Ct. 1266 (1993); Russell v. Fannin County School District, 784 F. Supp. 1576, 1582-83 (N.D. Ga.), aff'd without opinion, 981 F.2d 1263 (11th Cir. 1992); B.M.H. v. School Board of Chesapeake, 833 F. Supp. 560, 569-70 (E.D. Va. 1993) (eighth-grade girl sexually assaulted by classmate after she had reported classmate's threat to rape her) .
154 Nabozny v. Podlesny, 92 F.3d 446, 458-59 (7th Cir. 1996) (citing J.O. v. Alton Community Unit School District 11, 909 F.2d 267, 272-73 (7th Cir. 1990)). In Alton Community, the Seventh Circuit concluded that school administrators do not have a "special relationship" with students. In the absence of a "special relationship," a state actor has no duty under U.S. law to protect a potential victim.
155 Nabozny, 92 F.3d at 459 n.13. The court did not consider these factors because the student did not challenge or attempt to distinguish the court's holding in Alton Community.
156 DeShaney, 498 U.S. at 196 n.3.
157 See Nabozny, 92 F.3d at 455-58. See also "The Right to Nondiscrimination and Equal Protection of the Laws," below.
158 See U.S. Constitution, Amendment IX.
159 See, e.g., Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 426 (1821) (Marshall, C.J.) (concluding that Congress "has no general right to punish murder committed within any of the States").
160 Section 5 of the Fourteenth Amendment gives Congress "power to enforce, by appropriate legislation," the provisions of the amendment.
161 In 1883, the Supreme Court overturned the Civil Rights Act of 1875, 18 Stat. 336, which criminalized racially motivated interference by one private actor of another's "enjoyment of . . . inns, public conveyances on land or water, theatres, and other places of public amusement." The Court held:
162 The Commerce Clause gives Congress the power "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." U.S. Constitution, art. I, § 8, cl. 3.
163 See Civil Rights Act of 1964, Title II, Pub. L. No. 88-352, 78 Stat. 241 (codified as amended at 42 U.S.C. §§ 2000a-1 to 2000a-6 (2001)); Heart of Atlanta Motel, Inc., v. United States, 379 U.S. 241 (1964) (upholding Title II under the Commerce Clause); Katzenbach v. McClung, 379 U.S. 294 (1964) (same).
164 See 42 U.S.C. § 2000e-2 (2001) (prohibiting employment discrimination based on race, religion, sex, or national origin); 29 U.S.C. § 623(a) (2001) (age); 42 U.S.C. § 12112 (2001) (disability).
165 See Morrison,529 U.S. at 601 (invalidating 42 U.S.C. § 13981 (2000)). The courts have upheld the Violence Against Women Act's federal criminal remedy to punish domestic violence occurring during interstate travel, see 18 U.S.C. § 2261(a)(1) (2001), reasoning that the provision permissibly regulates the use of "channels" of interstate commerce, in this case "the interstate transportation routes through which persons and goods move." United States v. Lankford, 196 F.3d 563, 571-72 (5th Cir. 1999) (citing other federal appellate cases upholding 18 U.S.C. § 2261(a)(1) under the Commerce Clause).
166 The spending power is found in article I, section 8, of the U.S. Constitution, which provides: "The Congress shall have Power to lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States . . ." (emphasis added).
167 Civil Rights Act of 1964, Title VI, § 601, Pub. L. No. 88-352, 78 Stat. 241 (codified as amended at 42 U.S.C. §§ 2000d to 2000d-4a (2001)).
168 See Education Amendments of 1972, Pub. L. No. 92-318, Title IX, 86 Stat. 374 (codified as amended at 20 U.S.C. § 1681(a) (2000)).
169 Since 1935, the Supreme Court has interpreted the Spending Clause to empower Congress "to authorize expenditure of public moneys for public purposes," a power which "is not limited by the direct grants of legislative power found in the Constitution." United States v. Butler, 297 U.S. 1, 66 (1936). See, for example, South Dakota v. Dole, 483 U.S. 203, 207 (1987) (noting that "objectives not thought to be within Article I's `enumerated legislative fields' . . . may nevertheless be attained through use of the spending power and the conditional grant of federal funds"). See generally Albert J. Rosenthal, "Conditional Federal Spending and the Constitution," Stanford Law Review, vol. 39 (1987), p. 1103; Lynn A. Baker, "Conditional Federal Spending After Lopez," Columbia Law Review, vol. 95 (1995), p. 1911.
Congressional power under the Spending Clause is not unlimited because legislation enacted under the Spending Clause may not infringe on individual liberties or other constitutional rights. In 1984, for example, the Supreme Court invalidated legislation that prohibited editorializing by public radio stations that received federal funding from the Corporation for Public Broadcasting. See Federal Communications Commission v. League of Women Voters, 468 U.S. 364 (1984). In addition, the Supreme Court has suggested that Congress may not use its spending power in such a way that federal "pressure turns into compulsion" or to impose conditions that are "unrelated to the federal interest in particular national projects or programs." Dole, 483 U.S. at 211, 207.
170 See Hate Crimes Prevention Act of 1999, S. 622 IS, 106th Cong., 1st Sess. (1999). Currently, federal law permits federal prosecution of a hate crime only if the crime was motivated by bias based on race, religion, national origin, or color and the perpetrator intended to prevent the victim from exercising a federally protected right. Federal law also covers a broader range of hate crimes, including those motivated by actual or perceived sexual orientation or gender, that are committed on federal property. See 18 U.S.C. § 245; Violent Crimes Control and Law Enforcement Act of 1994, § 280003(a), Pub. L. No. 103-322, 108 Stat. 2096 (codified at 28 U.S.C. § 994 note (2001)).
To satisfy the constitutional concerns outlined above, the hate crimes bill approved by the Senate would only apply to crimes in which the perpetrator or the victim traveled in interstate commerce, used the "facilities" of interstate commerce, or engaged in activity affecting interstate commerce. See S. 622 IS, sec. 4, § 245(c)(1).
171 See Employment Non-Discrimination Act of 1999, H.R. 2355, 106th Cong., 1st Sess. (1999) (bill introduced by Rep. Christopher Shays); S. 1276, 106th Cong., 1st Sess. (1999) (parallel bill introduced by Sen. James M. Jeffords); Employment Non-Discrimination Act of 1997, H.R. 1858, 105th Cong., 1st Sess. (1997) (introduced by Rep. Shays); S. 869, 105th Cong., 1st Sess. (1997) (parallel bill introduced by Sen. Jeffords).
172 See Education Amendments of 1972, Pub. L. No. 92-318, Title IX, 86 Stat. 374 (codified as amended at 20 U.S.C. § 1681(a) (2000)). The Office for Civil Right's policy guidance on Title IX states: "The `educational program or activity' of a school includes all of the school's operations. This means that Title IX protects students in connection with allof the academic, educational, extra-curricular, athletic, and other programs of the school, whether they take place in the facilities of the school, on a school bus, at a class or training program sponsored by the school at another location, or elsewhere." U.S. Department of Education, Office for Civil Rights, "Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties," Federal Register, vol. 62 (March 13, 1997), p. 12034, 12038.
173 In doing so, the courts drew on employment discrimination cases under Title VII of the Civil Rights Act of 1964, Pub. L. No. 88-352, 78 Stat. 241 (codified as amended at 42 U.S.C. §§ 2000e to 2000e-17 (2001)). These cases have concluded, "Without question, when a supervisor sexually harasses a subordinate because of the subordinate's sex, that supervisor `discriminate[s]' on the basis of sex." Meritor Savings Bank FSB v. Vinson, 477 U.S. 57, 64 (1986). See, for example, Franklin v. Gwinnett County Public Schools, 503 U.S. 60, 75 (1992) ("We believe the same rule should apply when a teacher sexually harasses and abuses a student.").
174 In the context of employment discrimination, the Supreme Court has found that workplace harassment can violate Title VII's prohibition against "discrimination . . . because of . . . sex" when the harasser and the harassed employee are of the same sex. Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 80 (1998). At least two federal appeals courts have considered Title IX claims in which the alleged harasser and the harassed student were of the same sex. See Kinman v. Omaha Public School District, 94 F.3d 463 (8th Cir. 1996) (finding that sexual harassment between members of the same gender is actionable under Title IX); Seamons v. Snow, 84 F.3d 1226 (10th Cir. 1996) (dismissing suit on other grounds).
175 See Davis v. Monroe County Board of Education, 526 U.S. 629 (1999).
176 U.S. Department of Education, Office for Civil Rights and National Association of Attorneys General, Protecting Students from Harassment and Hate Crime (Washington, D.C.: U.S. Department of Education and Bias Crimes Task Force of the National Association of Attorneys General, 1999), p. 18.
177 See Nabozny v. Podlesny, 92 F.3d 446, 451-52 (7th Cir. 1996).
178 Human Rights Watch interview, Dallas, Texas, March 27, 2000.
179 Human Rights Watch interview, San Francisco, California, January 28, 2000.
180 U.S. Department of Education, Office for Civil Rights, "Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties," Federal Register, vol. 62 (March 13, 1997), p. 12039.
181 Similarly, school districts often treat lesbian, gay, bisexual, and transgender students differently in ways that may constitute discrimination based on sex. In Nabozny v. Podlesny, for example, the court found that a Wisconsin school did not address a gay student's complaints of harassment with the same diligence that it would have if the student had been female. See 92 F.3d 446, 455 (7th Cir. 1996). See generally "Right to Equal Protection and Nondiscrimination" section, below.
182 Rene v. MGM Grand Hotel, Inc., 243 F.3d 1206 (9th Cir. 2001).
183 Under the Office for Civil Rights's guidelines, the sexual harassment must be "sufficiently severe, persistent or pervasive to limit a student's ability to participate in or benefit from an educational program or activity or to create a hostile or abusive educational environment." Office for Civil Rights, "Sexual Harassment Guidance," p. 10238. This standard should not be taken to require students to show physical or mental injury before they may invoke Title IX's protections. In the related context of employment discrimination, the Supreme Court has noted that the statute "takes a middle path between making actionable any conduct that is merely offensive and requiring the conduct to cause a tangible physical injury. . . . Title VII comes into play before the harassing conduct leads to a nervous breakdown." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21-22 (1993). The Office for Civil Rights's guidelines emphasize that the severity of the abuse is evaluated from both an objective perspective and the perspective of the student targeted for harassment. Office for Civil Rights, "Sexual Harassment Guidance," p. 12041.
184 Office for Civil Rights, "Sexual Harassment Guidance," p. 12041.
185 See Doe v. University of Illinois, 138 F.3d 653, 655 (7th Cir. 1998); Oona R.-S. V. McCaffrey, 143 F.3d 473, 475 (9th Cir. 1998).
186 See Cannon v. University of Chicago, 441 U.S. 677 (1979) (finding that Title IX is enforceable through an implied private right of action); Franklin v. Gwinnett County Public Schools, 503 U.S. 60 (1992) (private actions under Title IX may seek money damages in addition to injunctive relief); Gebser v. Lago Vista Independent School District, 524 U.S. 274 (1998); Davis v. Monroe County Board of Education, 526 U.S. 629 (1999).
187 See Mitchell Zuckoff, "Making Men: The Boy Who Doesn't Fit In," Boston Globe, June 20, 1999; Mark Walsh, "District Agrees to Protect Gay Students," Education Week, July 8, 1998, p. 30.
188 See Commitment to Resolve, Fayetteville Public Schools, OCR Case No. 06971182 (June 8, 1998); Letter from Taylor D. August, director, Dallas Office, Office for Civil Rights, to David S. Buckel, staff attorney, Lambda Legal Defense and Education Fund, June 17, 1998.
189 See 16 Vt. Stat. Ann. § 565 (2000); Mass. Regs. Code tit. 603, § 26.07 (2000); Wis. Admin. Code § PI 9.02(9) (2000).
190 See Cal. Educ. Code § 220 (2000); Conn. Gen. Stat. § 10-15c (1999). The California measure does not explicitly list sexual orientation as a prohibited basis of discrimination, instead providing that "[n]o person shall be subjected to discrimination on the basis of sex, ethnic group identification, race, national origin, religion, color, mental or physical disability, or any basis that is containing in the prohibition of hate crimes set forth in subdivision (a) of Section 422.6 of the Penal Code . . . ." Cal. Educ. Code § 220 (2000) (emphasis added). Hate crimes based on sexual orientation are prohibited by the California Penal Code. See Cal. Penal Code § 422.6 (2000).
191 See National Gay and Lesbian Task Force, "Hate Crimes Map," January 2001, www.ngltf.org/issues (accessed on February 7, 2001).
192 See N.Y. Penal Law § 485.05. The State Assembly had passed a hate crimes bill every year since 1989, always including gays and lesbians in the list of protected groups. See Richard Pérez-Peña, "State Senate to Pass Bill on Hate Crime," New York Times, June 7, 2000, p. B1; "Attacking Hate Crimes," New York Times, June 9, 2000, p. A30 (editorial).
193 The Missouri statute defines "sexual orientation" as "male or female heterosexuality, homosexuality or bisexuality by inclination, practice, identity or expression, or having a self-image or identity not traditionally associated with one's gender." Mo. Rev. Stat. § 557.035 (1999) (emphasis added). California's bias crimes law defines gender as "the victim's actual sex or the defendant's perception of the victim's sex, and includes the defendant's perception of the victim's identity, appearance, or behavior,whether or not that identity, appearance, or behavior is different from that traditionally associated with the victim's sex at birth." Cal. Penal Code § 422.76 (2001). The Vermont statute covers "conduct [that] is maliciously motivated by the victim's actual or perceived . . . sexual orientation or gender identity." 13 Vt. Stat. Ann. § 1455 (2000).
Minnesota defines a "bias offense" as "conduct that would not constitute a crime and was committed because of the victim's or another's actual or perceived race, color, religion, sex, sexual orientation, disability as defined in section 363.01, age or national origin." Minn. Stat. § 611A.79 (2000). While the hate crimes law does not include gender identity and does not define these categories, the state human rights law defines "sexual orientation" as "having or perceived as having an emotional, physical, or sexual attachment to another person without regard to the sex of that person or having or being perceived as having an orientation for such attachment, or having or being perceived as having a self-image or identity not traditionally associated with one's biological maleness or femaleness." Ibid. § 363.01(41a) (2000) (emphasis added).
194 General Comment 18, Nondiscrimination, para. 12, Human Rights Committee, 37th sess., 1989, in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.1, p. 26 (1994).
195 The Human Rights Committee understands article 26 to prohibit both discriminatory intent and discriminatory effect. It has concluded that "the term `discrimination' as used in the Covenant should be understood to imply any distinction, exclusion, restriction or preference which is based on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, and which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms." Ibid., para. 7 (emphasis added). See also CEDAW, art. 1, ("effect or purpose"); International Convention on the Elimination of All Forms of Racial Discrimination, art. 1(1) ("purpose or effect"), opened for signature March 7, 1966, 660 U.N.T.S. 195 (entered into force January 4, 1969).
196 Article 2(1) of the Convention on the Rights of the Child provides, "States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind irrespective of the child's or his or her parent's or legal guardian's race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status."
197 General Comment 18, Nondiscrimination, para. 13, Human Rights Committee, 37th sess., 1989.
198 See Chapter III, "Legal Developments" section. See generally Wayne van der Meide, Legislating Equality: A Review of Laws Affecting Gay, Lesbian, Bisexual, and Transgendered People in the United States (New York: The Policy Institute of the National Gay and Lesbian Task Force, 2000); Dan Hawes, 1999 Capital Gains and Losses: A State-by-State Review of Gay, Lesbian, Bisexual, Transgender, and HIV/AIDS-Related Legislation in 1999 (Washington, D.C.: National Gay and Lesbian Task Force, 1999).
199 The Human Rights Committee declined to reach this issue in a 1992 case involving a challenge to Australia's sodomy laws because it concluded that the legislation violated the right to privacy under article 17 of the ICCPR. See Views of the Human Rights Committee under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights concerning Communication No. 488/1992: Australia, para. 11, Human Rights Committee, 50th sess., U.N. Doc. CCPR/C/50/D/488/1992 (April 4, 1994).
200 See Vienna Convention on the Law of Treaties, art. 32; Statute of the International Court of Justice, article 38(d).
201 Manfred Nowak, U.N. Covenant on Civil and Political Rights: CCPR Commentary (Kehl am Rhein, Germany: N.P. Engel, 1993), p. 45.
202 The working group that drafted the Convention on the Rights of the Child included "other status" after initially considering "any other distinction whatsoever" and "any other basis whatever." The U.S. representative to the 1981 working group submitted proposed text that included the phrase but did not offer an explanation of its meaning. At the 1989 working group, the representatives from Portugal, Italy, Sweden, Australia, the Netherlands, and the Federal Republic of Germany proposed that "other status" be included in the final text in order to make it consistent with the ICCPR and other international human rights instruments. The delegate from Sweden stated that "other status" would include aspects offamily status, including the status of being born out of wedlock. The delegate from Senegal said that "other status" covered every possible status. See Report of the 1981 open-ended Working Group on the Question of a Convention on the Rights of the Child,para. 44, U.N. Commission on Human Rights, 38th sess., U.N. Doc. E/CN.4/L.1575 (February 17, 1981); Report of the 1989 open-ended Working Group on the Question of a Convention on the Rights of the Child, paras. 148, 166-67, U.N. Commission on Human Rights, 45th sess., U.N. Doc. E/CN.4/1989/48 (March 2, 1989).
203 Views of the Human Rights Committee under article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights concerning Communication No. 488/1992: Australia, para. 8.7, Human Rights Committee, 50th sess., U.N. Doc. CCPR/C/50/D/488/1992 (April 4, 1994).
204 Nabozny v. Podlesny,92 F.3d 446, 455 (7th Cir. 1996).
205 See Wis. Stat. § 111.36(1)(d)(1) (1999); Tanner v. Oregon Health Sciences University, 971 P.2d 475 (Ore. Ct. App. 1998).
206 General Comment 17, Rights of the Child (Article 24), para. 2, Human Rights Committee, 35th sess., 1989, in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.1, p. 23 (1994).
207 U.S. states are bound by the equal protection clause of the Fourteenth Amendment, which provides that "[n]o State shall . . . deny to any person within its jurisdiction the equal protection of the laws." U.S. Constitution, Amendment XIV, § 1. The federal courts have interpreted the due process clause of the Fifth Amendment to require the federal government to observe substantially similar norms of equal treatment. See, for example, Bolling v. Sharpe, 347 U.S. 497 (1954) (invalidating racial segregation in District of Columbia public schools under the due process clause of the Fifth Amendment). The due process clause provides that "[n]o person shall be deprived of life, liberty, or property, without due process of law." U.S. Constitution, Amendment V.
208 Romer v. Evans, 517 U.S. 620, 631 (1996) (citing Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 271-72 (1979); F.S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415 (1920)).
209 In addition, U.S. courts accord some, but not all, intimate personal choices as fundamental rights, recognizing a "private realm of family life which the state cannot enter" without a compelling justification. Prince v. Massachusetts, 321 U.S. 158, 166 (1944) . Forexample, states may not enact laws that interfere with personal decisions to marry a person of the opposite sex, to have children, or not to have children. See Loving v. Virginia, 388 U.S. 1, 12 (1967) (invalidating law against racial intermarriage); Skinner v. Oklahoma, 316 U.S. 535 (1942) (invalidating state law providing for sterilization of certain repeat felons); Cleveland Board of Education v. LaFleur, 414 U.S. 632 (1974); Griswold v. Connecticut, 381 U.S. 479 (1965) (invalidating state statute criminalizing use of contraceptives); Roe v. Wade, 410 U.S. 113 (1973) (holding that only a compelling state interest can justify state regulation of a decision to end a pregnancy). But in Bowers v. Hardwick, 478 U.S. 186 (1986), the U.S. Supreme Court upheld Georgia's sodomy statute, holding that the U.S. Constitution does not protect consensual sexual relations between members of the same sex in the privacy of their home. (The Georgia Supreme Court overturned the state's sodomy law in 1998, finding that it violated the state constitution's guarantee of the right to privacy. See Powell v. State, 510 S.E.2d 18, 26 (Ga. 1998).)
210 See, e.g., McLaughlin v. Florida, 379 U.S. 184, 191-92 (1964) (race); Oyama v. California, 332 U.S. 633 (1948) (ancestry); J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 136 (1994) (sex); Lalli v. Lalli, 439 U.S. 259, 265 (1978) (illegitimacy).
211 Rational basis review is a deferential standard under which there is no constitutional violation if "there is any reasonably conceivable state of facts" that would provide a rational basis for the government's conduct. FCC v. Beach Communications, Inc., 508 U.S. 307, 313 (1993).
212 See, for example, City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985) (invalidating a zoning ordinance that created barriers to opening a group home for the mentally retarded); U.S. Department of Agriculture v. Moreno, 413 U.S. 528 (1973) (invalidating federal legislation restricting food stamp eligibility to households in which all members were related after finding that the restriction was intended to prevent "hippies" and "hippie communes" from participating in the program); Plyler v. Doe, 457 U.S. 202 (1982) (invalidating Texas law denying a free public education to the children of undocumented immigrants).
213 The amendment read:
214 Romer, 517 U.S. at 635.
215 Nabozny v. Podlesny, 92 F.3d 446, 458 (7th Cir. 1996).
216 The states with statutory prohibitions on sexual orientation discrimination in private employment are California, Connecticut, Hawaii, Massachusetts, Minnesota, Nevada, New Jersey, New Hampshire, Rhode Island, Vermont, and Wisconsin. See Cal. Gov't Code §§ 12920-21 (2000); Cal. Lab. Code § 1102.1 (2001); Conn. Gen. Stat. § 46a-81(c) (1999); Haw. Rev. Stat. § 378-2 (2000); Mass. Gen. L. ch. 151B, § 4 (1999); Minn. Stat. § 363.03 (1999); Nev. Rev. Stat. Ann. §§ 613.330, 610.020, 610.150 (2000); N.H. Rev. Stat. Ann. § 354-A:7(I) (1999); N.J. Stat. Ann. § 10:5-12 (2001); R.I. Gen Laws § 28-5-3 (2001); Vt. Stat. Ann., Title 21, § 495 (2000); Wis. Stat. Ann. § 111.36 (1999). See also D.C. Code §§ 1-2501 to 1-2557 (2000).
217 In addition, a number of states have enacted legislation prohibiting state contractors from discriminating on the basis of sexual orientation. See, for example, Nev. Rev. Stat. Ann. § 338.125 (2000).
218 See Wayne van der Meide, Legislating Equality (Washington, D.C.: The Policy Institute of the National Gay and Lesbian Task Force, 2000), pp. 4-5.
219 See Ga. Code Ann. § 45-19-29 (1999) (unlawful practice to discriminate in employment because of race, color, religion, national origin, sex, disability, or age); Kan. Stat. Ann. §§ 44-1001, 44-1002, 44-1009(a), 44-1113 (1999) (prohibiting discrimination in employment because of race, religion, color, sex, disability, national origin, ancestry, or age); N.Y. Exec. Law § 291(1) (1999) (no employment discrimination on basis of age, race, creed, color, national origin, sex, or marital status); Tex. Labor Code § 21.125 (2000) (covering race, color, sex, national origin, religion, age, and disability); Utah Code Ann. § 34A-5-106 (2000) (prohibiting discrimination in employment based on race, color, sex, "pregnancy, childbirth, or pregnancy related conditions," age "if the individual is 40 years of age or older," religion, national origin, and disability).
220 N.Y. Exec. Law § 291(1).
221 Ibid. § 291(2).
222 ICCPR, art. 19(2); Convention on the Rights of the Child, art. 13(1).
223 Zana v. Turkey, 1997-VII Eur. Ct. H.R. 2533, para. 51(i) (1997).
224 General Comment 17, Rights of the Child (Article 24), para. 2, Human Rights Committee, 35th sess., 1989, in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.1, p. 23 (1994).
225 Compare Convention on the Rights of the Child, art. 13(1), (2), with ICCPR, art. 19(2), (3).
226 Report of the 1987 open-ended Working Group on the Question of a Convention on the Rights of the Child, para. 112, U.N. Commission on Human Rights, 43d sess., U.N. Doc. E/CN.4/1987/25 (March 9, 1987). The U.S. delegate also spoke against the "paternalistic flavour" of a proposed amendment that would have restricted children's and adolescent's right to freedom of expression for their "spiritual and moral well-being." See Report of the 1989 open-ended Working Group on the Question of a Convention on the Rights of the Child, para. 272, U.N. Commission on Human Rights, 45th sess., U.N. Doc. E/CN.4/1989/48 (March 2, 1989).
227 See ICCPR, art. 19; Convention on the Rights of the Child, art. 13. These provisions also require that any limitations be expressly provided for by law.
228 Views of the Human Rights Committee under article 5(4) of the Optional Protocol to the International Covenant on Civil and Political Rights concerning Communication No. R.14/61, para. 10.3, Human Rights Committee, in Report of the Human Rights Committee, U.N. General Assembly, 37th sess., U.N. Doc. A/37/40, Supp. No. 40 (1982), pp. 161-165.
229 Ibid., para. 10.4. Similarly, the European Court of Human Rights concluded in 1971 that the "protection of the morals of the young" justified British authorities' seizure of The Little Red Schoolbook. Aimed at youth between twelve and eighteen years of age, the book contained a twenty-six page section on sex that discussed topics such as masturbation, pornography, contraception, abortion, and homosexuality. The Handyside Case, 24 Eur. Ct. H.R. (ser. A) (1971). In May 2000, the European Court of Human Rights upheld a decision by Hungary's Constitutional Court that denied registration to a gay rights group because the group did not restrict its membership to adults. The European Court of Human Rights stated:
230 See Just the Facts About Sexual Orientation and Youth: A Primer for Principals, Educators, and School Personnel (New York: GLSEN, 1999), p. 5.
231 In fact, studies of children raised by gay and lesbian parents conclude that they are no more likely to be gay, lesbian, bisexual, or transgender than the children of straight parents are. See Charlotte Patterson, "Children of Lesbian and Gay Parents," Child Development, vol. 63 (1992), p. 1025; Susan Golombok et al., "Children in Lesbian and Single-Parent Households: Psychosexual and Psychiatric Appraisal," Journal of Child Psychology and Psychiatry, vol. 24 (1983), pp. 551, 564; Frederick W. Bozett, "Children of Gay Fathers," Gay and Lesbian Parents (1987), pp. 39, 47.
232 For example, in its concluding observations on the country reports submitted by China (for Hong Kong), Trinidad and Tobago,and the United Kingdom (for the Crown Dependencies), the committee called for prohibitions on discrimination based on sexual orientation. See Concluding Observations of the Human Rights Committee (Hong Kong): China, para. 15, Human Rights Committee, 67th sess., U.N. Doc. CCPR/C/79/Add.117 (November 4, 1999); Concluding Observations of the Human Rights Committee: Trinidad and Tobago, para. 11, Human Rights Committee, 70th sess., U.N. Doc. CCPR/CO/70/TTO (November 3, 2000); Concluding Observations of the Human Rights Committee (Crown Dependencies): United Kingdom of Great Britain and Northern Ireland, para. 14, Human Rights Committee, 68th sess., U.N. Doc. CCPR/C/79/Add.119 (March 27, 2000). The committee called on Austria to remove discriminatory provisions setting the age of consentfor sexual relations between men at a higher age than that for sexual relations between men and women. Concluding Observations of the Human Rights Committee: Austria, para. 13, Human Rights Committee, 64th sess., U.N. Doc. CCPR/C/79/Add.103 (November 19, 1998). And it has urged Chile to abolish its law criminalizing sodomy "as between adults," noting that Chile's sodomy laws violate the right to privacy and "may reinforce attitudes of discrimination between persons on the basis of sexual orientation." Concluding Observations of the Human Rights Committee: Chile, para. 20, Human Rights Committee, 65th sess., U.N. Doc. CCPR/C/79/Add.104 (March 30, 1999).
233 Views of the Human Rights Committee under article 5(4) of the Optional Protocol to the International Covenant on Civil and Political Rights concerning Communication No. R.14/61, para. 10.3, Human Rights Committee, in Report of the Human Rights Committee, U.N. General Assembly, 37th sess., U.N. Doc. A/37/40, Supp. No. 40 (1982), pp. 161-165.
234 See The Society for the Protection of Personal Rights v. Minister of Education, 51(5) Piskei Din 822 (Israel 1997); The Society for Protection of Personal Rights for GLBT and others v. Board of Film Review, No. 4902/00, heard by the Israeli Supreme Court on July 27, 2000. See generally Alon Harel, "The Rise and Fall of the Israeli Gay Legal Movement," Columbia Human Rights Law Review, vol. 31 (2000), p. 443.
235 Individual opinion by committee members Opsahl, Lallah, and Tarnopolsky in Communication No. R.14/16, para. 10.3, in Views of the Human Rights Committee under article 5(4) of the Optional Protocol to the International Covenant on Civil and Political Rights concerning Communication No. R.14/61, Human Rights Committee, in Report of the Human Rights Committee, U.N. General Assembly, 37th sess., U.N. Doc. A/37/40, Supp. No. 40 (1982), pp. 161-165.
236 See ICCPR, art. 2(1); Convention on the Rights of the Child, art. 2(1).
237 James v. Board of Education of Central District No. 1, 461 F.2d 566, 575 (2d Cir. 1972).
238 Defamatory speech may be restricted under article 19(3)(a) of the ICCPR, which permits restrictions "[f]or respect of the rights or reputations of others." Incitement to violence is prohibited under article 20(2) of the convention. See also Glimmerveen and Hagenbeek v. Netherlands, App. Nos. 8348/78 and 8406/78, 18 Eur. Comm'n H.R. Dec.and Rep. 187 (1979) (rejecting a complaint from Dutch politicians convicted for distributing leaflets advocating racial discrimination and the removal of Surinamers, Turks, and other "guest workers" from the Netherlands) Under U.S. law, speech that "is directed to inciting or producing imminent lawless action and is likely to incite or produce such action" may be proscribed. See Brandenburg v. Ohio, 395 U.S. 444, 447 (1969).
239 See ICCPR, art. 20(2). The United States entered a reservation to article 20, providing "[t]hat Article 20 does not authorize or require legislation or other action by the United States that would restrict the right of free speech and association protected by the Constitution and laws of the United States." "U.S. Reservations, Declarations, and Understandings, International Covenant on Civil and Political Rights," Congressional Record, vol. 138 (daily edition, April 2, 1992), p. S4781-01.
240 See General Comment 10, Freedom of Expression (Article 19), para. 4, Human Rights Committee, 19th sess., 1983, in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.1, p. 11 (1994); Manfred Nowak, U.N. Covenant on Civil and Political Rights: CCPR Commentary (Kehl am Rhein, Germany: N.P. Engel, 1993), p. 350. In particular, Nowak notes that "[i]nterference [with free expression] based solely on an administrative provision or a vague statutory authorization violates Art. 19." Ibid., p. 351. See also Silver & Others v. United Kingdom, 61 Eur. Ct. H.R. (ser. A), at 21 (1983); Olsson v. Sweden, 130 Eur. Ct. H.R. (ser. A), at 30 (1988).
241 U.S. Constitution, Amendment I. Under the Due Process Clause of the Fourteenth Amendment, the First Amendment applies to state governments as well as Congress. See Gitlow v. New York, 268 U.S. 652, 666 (1925). As noted, the Due Process Clause provides, "nor shall any State deprive any person of life, liberty, or property, without due process of law . . . ." U.S. Constitution, Amendment XIV, § 1.
242 Tinker v. Des Moines Independent School District, 393 U.S. 503, 505-6 (1969).
243 See Gay Student Services v. Texas A & M University, 737 F.2d 1317, 1327 (5th Cir. 1984), cert. denied and appeal dismissed, 471 U.S. 1001 (1985).
244 See 20 U.S.C. § 4071 (2001). For a discussion of successful student efforts to secure recognition of gay-straight alliances in their high schools, see Chapter IX, "Efforts to Suppress Gay-Straight Alliances" section.
245 When interpreting statutes, the courts follow the principle that "an Act of Congress ought never to be construed to violate the law of nations if any other possible construction remains . . . ." Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804) (Marshall, C.J.).
246 Mass. Gen. L. ch. 71, § 82 (1999). For the full text of the statute, see Appendix E.
247 See Robins v. Pruneyard Shopping Center, 592 P.2d 341 (Cal. 1979), aff'd, 447 U.S. 74 (1980). See also Committee to Defend Reproductive Rights v. Myers, 625 P.2d 779, 783 (Cal. 1981) (noting that the California Supreme Court has "on numerous occasions construed the California Constitution as providing greater protection than that afforded by parallel provisions of the United States Constitution.").
248 Tinker v. Des Moines Independent School District, 393 U.S. 503, 509 (1969).
249 Weaver v. Nebo School District, 29 F. Supp. 2d 1279, 1284 (D. Utah 1998).
250 Ibid., p. 1284, n. 3. In addition, some issues are considered "inherently of public concern"; racial discrimination is one such example. See Connick v. Myers, 461 U.S. 138, 148 n.8 (1983). Citing Connick, Justice Brennan commented in a 1985 case, "I think it impossible not to note that a similar public debate is currently ongoing regarding the rightsof homosexuals." Rowland v. Mad River Local School District, Montgomery County, Ohio, 470 U.S. 1009, 1012 (1985) (Brennan, J., dissenting from denial of certiorari), denying cert. to 730 F.2d 444 (6th Cir. 1984).
251 Rosenberger v. Rector and Visitors of the University of Virginia, 515 U.S. 819, 833 (1995).
252 Myron Dean Quon, "Public Teachers' Right to Be Open Regarding Their Sexual Orientation Under Federal and California Law" (Lambda Legal Defense and Education Fund, February 22, 1999), http://www.lambdalegal.org/cgi-bin/pages/documents/record? record=382 (accessed on April 23, 2001).
253 See Bowers v. Hardwick, 478 U.S. 186 (1986).
254 See Powell v. State, 510 S.E.2d 18, 26 (Ga. 1998) (finding that law "manifestly infringes" on right to privacy under Georgia Constitution); Picado v. Jegley, No. CV 99-7048, slip opinion at 8 (Ark. Cir. Ct. March 23, 2001) (finding sodomy statute "unconstitutional under the Arkansas Constitution on right to privacy grounds"); Commonwealth v. Wasson, 842 S.W.2d 487, 491-92 (Ky. 1992) (concluding that state law prohibiting "deviate sexual intercourse with another person of the same sex" violated rights of privacy and equal protection under Kentucky Constitution); Michigan Organization for Human Rights v. Kelly, No. 88-815820-CZ (Mich. Cir. Ct. 1990) (trial court finding that state law violated Michigan privacy rights); Gryczan v. State, 942 P.2d 112 (Mont. 1997); Campbell v. Sundquist, 926 S.W.2d 250 (Tenn. Ct. App. 1996); Lawrence v. State of Texas, Nos. 14-99-00109-Cr and 14-99-00111-CR, 2000 Tex. App. LEXIS 3760 (Tex. Ct. App. June 8, 2000); State of Louisiana v. Smith,No. 99-0606, 2000 La. LEXIS 1911 (La. July 6, 2000) (upholding state statute).
255 Ala. Code § 16-1-28(a) (2000). While the statute was pending before the state legislature, the Alabama attorney general issued an opinion advising that "an organization that professes to be comprised of homosexuals and/or lesbians may not receive state funding or use state-supported facilities to foster or promote those illegal, sexually deviate activities defined in the sodomy and sexual misconduct laws." See Gay Lesbian Bisexual Alliance v. Sessions, 917 F. Supp. 1548, 1550-51 (M.D. Ala. 1996), aff'd sub nom. Gay Lesbian Bisexual Alliance v. Prior, 110 F.3d 1543 (11th Cir. 1997)
0 See id. at 1557. See also Gay Student Services v. Texas A & M University, 737 F.2d 1317, 1319 (5th Cir. 1984); Gay Lib v. University of Missouri, 558 F.2d 848 (8th Cir. 1977); Gay Alliance of Students v. Matthews, 544 F.2d 162 (1976); Gay Students Organization of the University of New Hampshire v. Bonner, 509 F.2d 652 (1st Cir. 1974).
1 Views of the Human Rights Committee under article 5, paragraph 4 of the Optional Protocol to the International Covenant on Civil and Political Rights concerning Communication No. 488/1992: Australia, para. 9, Human Rights Committee, 50th sess., U.N. Doc. CCPR/C/50/D/488/1992 (April 4, 1994). Article 17(1) of the ICCPR provides:
2 See Dudgeon Case, para. 41 (Eur. Ct. H.R. September 23, 1981); Norris Case, para. 38 (Eur. Ct. H.R. October 26, 1988); Modinos v. Cyprus, para. 24 (Eur. Ct. H.R. March 25, 1993). Under the European convention, "[e]veryone has the right to respect for his private and family life, his home and his correspondence." Convention for the Protection of Human Rights and Fundamental Freedoms, art. 8(1), opened for signature Nov. 4, 1950, 213 U.N.T.S. 221 (entered into force Sept. 3, 1953).
3 Consideration of Reports Submitted by States Parties Under Article 40 of the Covenant, Human Rights Committee, 53d sess., U.N. Doc. CCPR/C/79/Add.50 (1995), para. 287 (commenting on the United States' initial report).
4 See "U.S. Reservations, Declarations, and Understandings, International Covenant on Civil and Political Rights," Congressional Record, vol. 138, p. S4781-01 (daily edition, April 2, 1992). With regard to implementation, the U.S. Senate noted:
5 See Human Rights Watch, Modern Capital of Human Rights? Abuses in the State of Georgia (New York: Human Rights Watch, 1996), p. 155.
6 See ICCPR, arts. 22, 21; Convention on the Rights of the Child, art. 15.
7 Roberts v. United States Jaycees, 468 U.S. 609, 622 (1984).
8 Statements of Reps. Don Bonker and William F. Goodling, in Congressional Record, vol. 130 (daily edition, October 11, 1994), pp. 32315-18.
9 Weaver v. Nebo School District, 29 F. Supp. 2d 1279, 1290 n.10 (D. Utah 1998).
10 The U.S. Supreme Court has rejected the contention that education is a fundamental right guaranteed by the U.S. Constitution: "Education, of course, is not among the rights afforded explicit protection under our Federal Constitution. Nor do we find any basis for saying it is implicitly so protected." San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973). For a review of the right to education in state constitutions and statutes, see generally Molly McUsic, "The Use of Education Clauses in School Finance Reform Litigation," Harvard Journal on Legislation, vol. 28 (1991).
11 Brown v. Board of Education, 347 U.S. 483, 493 (1954). The U.S. Supreme Court has also observed that education "provides the basic tools by which individuals might lead economically productive lives" and "has a fundamental role in maintaining the fabric of our society." Plyler v. Doe, 457 U.S. 202, 221-22 (1982).
12 See "Right to Nondiscrimination and Equal Protection of the Laws" section, above.
13 Convention on the Rights of the Child, art. 29(1)(b), (d). The Declaration on the Rights of the Child also provides that the child "shall be given an education which will promote his general culture, and enable him, on a basis of equal opportunity, to develop his abilities, his individual judgment, and his sense of moral and social responsibility, and to become a useful member of society." Declaration on the Rights of the Child, Principle 7, G.A. Res. 1386, U.N. GAOR, 14th sess., Supp. No. 16, p. 19, U.N. Doc. A/4354 (1959).
14 Transgender is an umbrella term that encompasses a continuum from men and women who simply failed to conform to society's rules dictating how men and women should look to people who identify as transsexuals, that is, people who undergo medical treatment, including sex reassignment surgery, in order to change their bodies to conform with their gender identities. Transsexualism is recognized by the medical establishment when men or women report a persistent identification that does not conform with their biological sex. Under existing medical protocols, such a diagnosis is made only after a person reaches twenty-one years old.
15 There is a growing debate regarding the medical establishment's treatment of infants who are born intersex, with ambiguous indicators of their biological sex. However, for the purposes of this report, we have confined ourselves to a discussion of issues related to sexual orientation and gender identity. For more information on intersexuality, see the webpage of the Intersex Society of North America, www.insa.org/ (accessed on March 28, 2001).
16 Convention on the Elimination of All Forms of Discrimination against Women, art. 5(a), adopted December 18, 1979, 1249 U.N.T.S. 13 (entered into force September 3, 1981). The United States has signed but failed to ratify the Convention on the Elimination of All Forms of Discrimination against Women. Nonetheless, as a signatory to the treaty, the United States should respect its object and purpose, especially because it is an elaboration of the prohibition against discrimination on the basis of sex enshrined in the ICCPR, a treaty which the United States has ratified.
17 General Recommendation No. 3, Education and Public Information Campaigns, Committee on the Elimination of Discrimination against Women, 6th sess., U.N. Doc. CEDAW/C/1987/L.1/Add (1987). The general recommendation calls for education and public information programs in light of the fact that every country report has reflected a failure to address article 5. The committee observed that "the reports . . . present features in varying degrees showing the existence of stereotyped conceptions of women . . . that perpetuate discrimination based on sex and hinder the implementation of article 5 of the Convention."
18 General Recommendation No. 19, Violence Against Women, para. 11, Committee on the Elimination of Discrimination against Women, 11th sess., U.N. Doc. CEDAW/C/1992/L.1/Add.15 (1992).
22 Executive Committee Conclusion No. 39 (XXXVI), Refugee Women and International Protection, para. k, U.N. High Commissioner for Refugees (1985).
23 European Parliament, Resolution on the Application of the Geneva Convention relating to the Status of Refugees, 1984 O.J. (C 127) 137.
24 Civil Rights Act of 1964, Pub. L. 88-352, Title VII, 78 Stat. 253 (codified as amended at 42 U.S.C. §§ 2000e to 2000e-17 (2001)).
25 29 C.F.R. § 1604.11(a) (1996).
26 490 U.S. 228 (1989). The Civil Rights Act of 1991, enacted "to respond to recent decisions of the Supreme Court by expanding the scope of relevant civil rights statutes in order to provide adequate protection to victims of discrimination," has superceded other aspects of the Court's analysis in Price Waterhouse. See Pub. L. No. 102-166, §§ 3(4) (codified at 42 U.S.C. § 1981 note) and 107 (codified at 42 U.S.C. §§ 2000e-2, 2000e-5(g)), 105 Stat. 1071, 1071, 1075-76; Landgraf v. USI Film Products, 511 U.S. 244, 251 (1994).
27 See Price Waterhouse, 490 U.S. at 234.
28 Opponents of the Civil Rights Act of 1964 added the provision prohibiting employment discrimination based on sex to the bill because they were convinced that a sufficient number of lawmakers would balk at guaranteeing equality between men and women and withdraw their support for the measure. See ibid., p. 244 n.9 (citing Charles and Barbara Whalen, The Longest Debate: A Legislative History of the 1964 Civil Rights Act (Cabin John, Maryland: Seven Locks Press, 1985), pp. 115-17).
29 Ibid., p. 235.
30 Ibid., p. 256.
31 119 F.3d 563 (7th Cir. 1997). This decision was subsequently vacated by the Supreme Court and remanded to the U.S. Court of Appeals for the Seventh Circuit for further consideration in light of Oncale v. Sundowner Offshore Services, 479 U.S. 806 (1998), which held that same-sex sexual harassment is covered by Title VII of the Civil Rights Act of 1964. The Doe case was apparently resolved without a published decision.
32 Doe, 119 F.3d at 580.
33 Price Waterhouse, 490 U.S. at 251 (quoting Los Angeles Dept. of Water and Power v. Manhart, 435 U.S. 702, 707 n.13 (1978) (quoting Sprogis v. United Air Lines, Inc., 444 F.2d 1194, 1198 (7th Cir. 1971))), quoted in Doe, 119 F.3d at 581.
34 Doe, 119 F.3d at 574.
35 Tanner v. Prima Donna Resorts, Inc., 919 F. Supp. 351, 355 (D. Nev. 1996), quoted in Doe, 119 F.3d at 588.
36 Rene v. MGM Grand Hotel, Inc., 243 F.3d 1206 (9th Cir. 2001) (quoting Oncale, 523 U.S. at 80).
37 Ibid. (D.W. Nelson, J., dissenting).
38 "Policy Targets Bias" Washington Blade, November 20, 1998.
39 See Education Amendments of 1972, Pub. L. No. 92-318, Title IX, 86 Stat. 374 (codified as amended at 20 U.S.C. § 1681(a) (2000)).
40 U.S. Department of Education, Office for Civil Rights, "Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties," Federal Register, vol. 62 (March 13, 1997), p. 12039.