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Read “Maine Youth: Your Questions Answered!”

What rights do LGBTQ students have when facing discrimination, harassment, and bullying?

LGBTQ students have the right to attend safe schools that are free of discrimination and bullying. (Note that for purposes of Maine law, bullying and harassment often overlap).

Discrimination and Harassment

If you are being bullied or harassed, you are not alone. And the State of Maine says it is wrong.  Students in public schools are legally protected from discrimination, which can include harassment based on being an LGBTQI person, and from bullying. The laws are described below.

TIP: Keep a log and jot some notes down of what is happening, when, where and who is involved. Are there teachers or staff who can or should be seeing/hearing this occur? How have you responded? Do not give away your only copy of your notes.

Maine law (Title 5 Maine Revised Statutes section 4602) prohibits discrimination:

  • in education;
  • based on the person’s sexual orientation (which includes gender identity and expression), sex, physical or mental disability, and national origin or race; and
  • in any academic, extracurricular, research, occupational training, or other programs or activities.

The Maine Human Rights Commission enforces this law. For more information on pursuing complaints at the Maine Human Rights Commission see:

TIP: Maine laws can be found online on the website of the Revisor of Statutes at www.legislature.maine.gov/legis/statutes/ or via the State of Maine website.

Bullying

Maine law also prohibits bullying in public schools. Bullying sometimes overlaps with harassment, and the Legislature thought it important to clarify that whatever it is called, it is not ok to single out people because of their “personal characteristics.” The anti-bullying law forbids bullying based on:

“[A] student’s actual or perceived race; color; religion; national origin; ancestry or ethnicity; sexual orientation; socioeconomic status; age; physical, mental, emotional or learning disability; gender; gender identity and expression; physical appearance; weight; family status; or other distinguishing personal characteristics…” (Title 20-A Maine Revised Statutes Section 6554)

The anti-bullying law states that “[a]ll students have the right to attend public schools that are safe, secure and peaceful environments.”

Bullying is defined as any communication (written, oral, or electronic) or physical act or gesture that:

  • harms or seriously threatens you or your property;
  • creates a hostile school environment; or
  • interferes with your academic performance or ability to participate in school activities.

Schools are legally required to develop policies and procedures to address bullying and cyberbullying in schools and to prevent it and address it when it does occur. Someone in the school should be designated to handle complaints.  Read your school’s or district’s policy and follow up with the person designated! If the school can’t resolve the bullying, you may want to consider filing a complaint at the Maine Human Rights Commission for discrimination and harassment.

TIP: Advocates are working to clarify that the “sex” discrimination provisions of the federal Title IX of the Education Amendments of 1972 also protect LGBTQ people from discrimination. Title IX forbids sex discrimination in all educational programs and activities that receive any federal funding, and at all levels.

Can a teacher, administrator, or school staff member, such as a school nurse, refuse to use a student’s chosen name because it is not the student’s legal name?

No. The school would be in the wrong as long as the student had made a request in writing that the school use the student’s chosen name and pronouns. This information comes from the Maine Human Rights Commission (MHRC) guidelines issued in January 2016.

The MHRC Guidelines specifically address names and other topics. Go to: http://www.maine.gov/mhrc/guidance/CCmemo.education.so.pdf. The following is a section of this gem. Please read it! (The bolding has been added and is not in the original.)

MHRC GUIDELINES ON WHAT IT MEANS NOT TO DISCRIMINATE BASED ON  GENDER IDENTITY IN SCHOOLS

On Student Names and Appearance:

“A student’s official record shall bear their legal name, which may be changed only upon proof that the student’s legal name has been changed pursuant to a court order. At the written request of a student, however, and consistent with the student’s gender identity, the educational institution shall use the student’s preferred name and pronouns consistent with their gender identity on all other documents. If a student so chooses, the educational institution’s employees should be required to address the student by the student’s chosen name and use pronouns consistent with the student’s gender identity. The educational institution should also, at the request of any student, instruct its students to address the student by the student’s chosen name and use pronouns consistent with the student’s gender identity. Inadvertent slips and honest mistakes will not be considered a violation of the Act, but a pattern of refusal to acknowledge a student’s gender identity by using their chosen name and pronouns may be considered to constitute such a violation.”

On Respect for Students Gender Identity:

Importantly, given the possibility of conflict between parents and a youth about gender identity, the Guidance urges respect for the student’s gender identity to the extent possible:  “In the event that the student and their parent/legal guardian do not agree with regard to the student’s sexual orientation, gender identity, or gender expression, the educational institution should, whenever possible, abide by the wishes of the student with regard their gender identity and expression while at school.”

On Dress Codes:

“Students should be permitted to dress in a manner consistent with the student’s gender identity, subject to any dress code adopted by the educational institution. The dress code should be applied to the student consistent with their gender identity.”

If a school refuses to fly the rainbow flag outside the school building, is that unlawful? Right now the school flies only the American and Maine flags.

These kinds of questions are very tricky. And even thought it sounds like “a lawyer answer,” the truth is that it may or may not be unlawful depending on the facts and circumstances.

By law, the only flags that must be flown at public buildings are the U.S. and Maine flags. If the school flies only those flags and allows no other flags to be flown, there may be little to be done about it.

On the other hand, if the school flagpole is open to all students who want to fly a flag (subject to rules and restrictions applicable to all), then the rainbow flag should fly on the same terms and conditions applied to other student requests. If the school refuses to fly only the rainbow flag while flying similar flags, that could well amount to interference with the student’s free speech rights based on the content or viewpoint represented by the rainbow flag. But if no other flags are flown, or if there are rules forbidding other flags from being flown, then no one is being singled out for who they are or their points of view.

From another angle: If a school banned students from displaying rainbow flags inside the school, then those actions suggest interference with free speech rights. Students don’t shed their constitutional rights when they walk into the school building. In a famous 1970s case known as Tinker v. Des Moines, the U.S. Supreme Court ruled that it is unconstitutional to punish students for wearing black armbands in silent protest of the Vietnam War. There are some limits on student speech though. Among other things, schools may limit speech that impinges on the rights of other students, including their rights to be secure and let alone, or speech that causes a “substantial disruption or material interference with school activities.”

What if students succeeded in flying the rainbow flag and someone then asked to fly the confederate flag?

For many people, the confederate flag is a symbol of hate, racism, prejudice, and bigotry. For others, the confederate flag is a symbol of U.S. history, specifically the American Civil War from 1861 to 1865, or regional pride. The display of the confederate flag and other confederate paraphernalia at public schools has been an ongoing controversial issue for many years. American Civil Liberties Union (ACLU) chapters in different states have come out different ways about whether that flag can be displayed by students, depending on the circumstances.

If schools allow any and all flags to be flown, which seems unlikely, then a school would have to justify why particular viewpoints are barred from expression. The school may not want to fly the confederate flag because it may convey a message the school does not wish to endorse, or because of its associations with racial hostility and the school’s wish to protect students from abuse and intimidation.

Would a complaint to the Maine Human Rights Commission be viable if the school refused to fly the rainbow flag?

The Maine Human Rights Commission takes a broad view of discrimination and welcomes complaints. Complaints must be filed within 300 days of the claimed discriminatory action.

Assuming that requests to fly a flag are covered by education anti-discrimination laws, then the person who files the claim of discrimination has to prove that the flag was not flown for discriminatory reasons as opposed to legitimate reasons. Discrimination might be proven by showing that other groups were allowed to fly flags, or that the school didn’t follow its own rules for allowing flags because it was an LGBTQ group or individual making the request.

TIP: Bulletin boards are place for students to get the word out and express themselves. If schools allow students to post on bulletin boards about non-school events, then they can’t refuse a posting about a Rainbow Ball or GLSEN meeting simply because of its LGBTQ+ content. But schools can prohibit lewd and vulgar speech (and that is generally true in the school setting), and they can also ask you to identify yourself on your posting.

In my school, it seems like LGBTQ students and students of color get singled out for suspensions and discipline. Can I do anything about this?

Numerous national studies document “disproportionate discipline” in schools, such as this 2016 report from GLSEN: https://www.glsen.org/article/dropout-push-out-and-school-prison-pipeline. Please contact GLAD or other supports and legal resources if you believe this is occurring at your school.

There are also ways to contest your suspension or expulsion. See the website of Pine Tree Legal Assistances, Maine’s Legal Services agency, for information: www.ptla.org/category/nsmi/education/schooldiscipline-suspension-expulsion.

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