Defending LGBTQ+ Inclusion and the Freedom to Learn in Our Public Schools

Public schools are under attack in the US

Spurred on by extremist politicians, a small but vocal minority is seeking to undo schools as student-centered places where young people are safe and engaged in learning what they need to succeed in life — under the banner of “parents’ rights.” In addition to putting students at risk, these efforts seek to extend the parental preferences of some into every classroom and add to the already heavy burden borne by the teachers and other professionals who work tirelessly every day to support and educate kids.

At least 177 bills have been introduced in state legislatures this session, many of which also explicitly or implicitly target LGBTQ+ and other vulnerable students for exclusion and surveillance or making them invisible, such as with “CRT” bans. These bills are part of a coordinated, national effort at work in New England, too. In Maine, for instance, we have already opposed 18 different bills targeting education, with more to come, while also supporting counselor/social worker to student confidentiality and rulemaking addressing discrimination. In Rhode Island, we’ve seen at least nine such bills. Fortunately, the efforts of GLAD, our state partners, pro-equality legislators, and community members have been able to slow or stop most of these bills in New England, but we are not done and cannot let our guard down.

These bills run the gamut. Some attempt to police what books are available in school or classroom libraries, stifling student learning and denying them the opportunities for discovery and to see themselves and their families and friends represented. Many of the bills attempt to micromanage curriculum, even when already locally approved with public input, by insisting that teachers must accommodate parental preferences and allow broad opt-outs from whatever a particular parent might believe is “divisive” or against their values. Some would ban schools from using different names, nicknames, or pronouns at school and require monitoring of students for “changes” that must then be reported to parents, with parents obtaining a private right to sue to enforce this vague requirement. Still others aim to censor discussion of any topics related to race or sex, including sexual orientation and gender identity, restricting students’ ability to learn a fuller picture of American history and values, develop critical thinking skills, and learn to take their places in our democracy. In the end, schools are student-centered for a reason: Schools are for young people. The information parents want is also largely available from the school or school system website, the child’s school account, from talking with teachers and state, and from existing information required to be provided to parents under state and federal laws.

In addition to making the case to the people’s representatives as they seek to make or change laws, GLAD, along with the ACLU of NH, Disability Rights Center — NH, and the National Educators Association — NH chapter, is in court continuing to challenge a related New Hampshire law that vaguely defines race, disability, gender, sexual orientation, and gender identity as “divisive concepts,” discouraging teachers from saying anything that might imperil their teaching licenses, all to the detriment of students. School district DEI professionals in New Hampshire report that the law is causing confusion and fear for teachers, stifling teaching on essential topics, and creating greater isolation for students. A federal judge denied the state’s motion to dismiss our lawsuit in January because of its inevitable connection to teacher censorship, saying, “Given the severe consequences that teachers face if they are found to have taught or advocated a banned concept, plaintiffs have pleaded a plausible claim that the amendments are unconstitutionally vague.”

Beyond restrictions on class materials and discussion, another dangerous trend is gaining a troubling amount of traction this year – bills and targeted litigation aimed at forcing schools to “out” LGBTQ+ students and cutting them off from the support of trusted adults they rely on at school.

In New England, we’ve directly contested these bills in Maine, Rhode Island, and New Hampshire and are working with our state partners to stop them.

In New Hampshire, GLAD and our coalition partners narrowly but soundly defeated such a bill in May. SB 272 purposely singled out transgender and gender nonconforming youth to be surveilled and reported on by school staff, including any request to use a different name or pronoun, change in a student’s gender presentation, or attendance at a GSA meeting. With the bill’s defeat, New Hampshire has affirmed that schools should be a space of safety for LGBTQ+ students and that they can have conversations with their families when they are ready to do so. In Maine, we are also working with partners and providing extensive legal background explaining how these bills, if passed, would disrupt or deny the legally acknowledged obligations of schools to manage their learning environments and of students’ rights to equal educational opportunity. In Rhode Island, we have likewise joined with partners to speak out against several bills that threaten schools and teachers with penalties for not complying with vague requirements to allow virtually any individual parent to dictate school lesson plans, as well as bills aimed at removing teachers’ and school staff’s ability to support LGBTQ+ students in school.

To be clear, we support parents and their involvement in schools. A strong parent-child relationship is a lifelong protective factor. But these bills use the language of “parents’ rights” to impose specific parental preferences on how public schools operate their day-to-day activities and meet their obligation to support and provide an equal education for all students.

Two non-binary students doing work together in class
Photo by The Gender Spectrum Collection

We are also working to defend positive school policies in the courts. GLAD and ACLU-NH filed a friend-of-the-court brief in the New Hampshire Supreme Court in Doe v. Manchester School District, supporting a lower court ruling upholding the district’s policy of supporting transgender students. That policy includes referring to students by their requested names and pronouns and maintaining student privacy when appropriate. Our brief notes the school’s legal obligation to ensure students can learn no matter who they are and their right to control the learning environment to do so. The brief also cites substantial research showing that a positive school climate that fosters a sense of safety, belonging, and respect is optimal for learning. Lawsuits like these show that some parents, despite asserting parental rights, seek to have the school insert itself into family relationships with “outing” and reporting to parents on student behavior at school.

As GLAD Attorney Chris Erchull explained, “Forcing schools to disclose information against a student’s wishes takes away a trusted source of support from transgender and gender nonconforming students and shuts down the opportunity for an important, voluntary conversation between the child and parent when the student is ready.” GLAD is also engaged in the pending 1st Circuit case, Foote v. Ludlow Public Schools, raising many of the same issues. Read our Ludlow brief here.

GLAD submitted a friend-of-the-court brief with the Massachusetts Superintendents Association in the District Court, which dismissed the case in December. GLAD will continue its involvement at the First Circuit, where the question remains whether the parents have adequately alleged facts to make a legal claim so that they can proceed with the litigation and try to prove their case of a violation of their rights. All rulings in this legal area are consequential. Parents and schools can and should be natural allies when it comes to ensuring students are safe, protected, and able to learn what they need to succeed in life. The current wave of attacks on schools, libraries, and LGBTQ+ students is only creating false conflicts between parents and schools at a time when we should all be focused on ensuring that every young person, including LGBTQ+ youth, can learn and thrive in a safe environment while at school.

This story was originally published in the Summer 2023 GLAD Briefs newsletter. Read more.