The lesbian, gay, bisexual, and transgender (LGBT) community frequently faces challenges that other groups don't need to contend with as a result of prejudice and discrimination. Although there are legal protections intended to ensure equal treatment for LGBT and other groups facing discrimination, issues still frequently arise.
Even determining the extent of the problems is difficult since there is little data available about the size and distribution of LGBT student populations. Data, where it is available, is typically the product of voluntary self-reporting. As a result, acts of prejudice and discrimination may go unreported or it may be unclear that a person's LGBT status is the basis for their treatment. Read on to learn more about the legal issues LGBT college students face and the resources available to them.
Schools have varying levels of support for their LGBT students. Colleges may permit or support LGBT student organizations, and some schools have gay-straight alliances intended to help establish environments that are safer and more sensitive to LGBT issues. Even where such organizations exist, LGBT students may experience harassment resulting in higher dropout rates, missed classes, lowered GPAs, depression, substance abuse, and suicide in some cases.
While universities don't have a legal responsibility to establish or support LGBT organizations, legal issues can arise when a school treats LGBT organizations differently from other school clubs. The Supreme Court's landmark case on student organizations, Healy v. James, set standards relating to schools and the denial of official recognition of student organizations. Due to students' rights to free association and free speech there are only three circumstances in which a university could deny permission for students to form a student organization. Student organizations must be permitted when:
Subsequent court decisions have extended protections so that schools cannot prevent a student organization from holding social events, deny them funding, or deny them the right to organize. The First Amendment rights to free speech and association have been the basis of each of these decisions.
However, it should be noted that federal laws, and the the court decisions that arise from them, only apply to public colleges and universities. The power to regulate peoples' activities within a state are limited. As a result, private colleges that do not accept federal funding may escape federal regulation, unless their activities impact interstate commerce. State antidiscrimination laws may create similar rights and obligations, but they do not exist in every state.
Some schools have sought constitutional grounds to avoid association with LGBT organizations. Jesuit schools, in particular, have had limited success claiming that denial of recognition to LGBT organizations is a valid exercise of the school's freedom of religion. The lead case on this issue is Gay Rights Coalition of Georgetown University Law Center v. Georgetown University, which found that the private Jesuit university could deny official recognition to an LGBT group, but that it could not deny students the right to use campus facilities. It's currently unclear whether other courts will adopt this approach to preserving the rights of both the educational institution and LGBT students.
Hate Crimes, Bullying, and Intimidation
Virtually every state has passed anti-bullying legislation, though no federal laws deal directly with bullying. When bullying or harassment is based upon the sexual identity of the victim, anti-discrimination laws may apply. Bullying may ultimately violate civil rights laws, civil laws, and criminal laws.
Recent anti-bullying statutes come in the wake of several national news stories. Tyler Clementi was an LGBT student at Rutgers University who was bullied by his roommate and classmates. Following Clementi's suicide, New Jersey passed a bill that remains one of the strongest anti-bullying laws in the country. The law requires public schools to implement anti-bullying programs and policies that had previously been optional. Schools are required to have anti-bullying specialists and report incidents to the state, though many of the stronger protections remain encouraged rather than required.
Although schools may increasingly carry liability for harassment, bullying, hate crimes, and intimidation between students, the current laws are inconsistent and, in many cases, untested in courts. An experienced local attorney can help you determine whether bullying you or your child experiences at college can create a potential cause of action against their school.
Resources for LGBT Students
There are a number of national and regional organizations whose mission is to help provide safe environments for LGBT students through organization, education, and advocacy programs. These organizations include:
Schools may also maintain an Allies and Safe Zones Program. This and similar programs provide students with designated faculty and staff who have received training on LGBT issues and are willing to provide counsel and support to LGBT students. Groups of this sort frequently display a logo or symbol identifying "Allies" and "Safe Zones."
In addition, schools may have LGBT organizations and Gay-Straight Alliance organizations that can provide support and community to LGBT students. Many schools also have LGBT study programs that can provide support and assistance to LGBT students experiencing difficulties. Some schools have developed LGBT friendly communities as a campus housing option as well as gender-neutral bathroom locations. Training programs, social events, conferences, scholarships, newsletters, and special events can also provide opportunities to get involved in campus LGBT communities.
Getting Legal Help
If your school refuses to recognize or support LGBT student groups, or if LGBT groups are being treated differently from similar organizations, you should consult with a civil rights attorney who can help protect your rights.