Thursday, July 16, 2015

Senate Votes Down ESEA Amendment to Protect LGBTQ Youth

Yesterday, the Senate rejected an amendment to the Elementary and Secondary Education Act that would have specifically prohibited discrimination against lesbian, gay, bisexual, transgender, and queer (LGBTQ) students in school.  Surely, the Supreme Court's recent decision upholding the right of same sex couples to marry was lurking in the minds of many.  A vote against this amendment could be seen as ideologically in line with the opposition to same sex marriage.  That, however, was not the major rationale for voting against the measure.  Some senators argued that the amendment was unnecessary because Title IX of the Education Amendments of 1972 already protected LGBTQ youth.

This rationale should ring hollow to those who have followed Title IX precedent and politics over the past two decades.  Conservatives are correct that Title IX affords protection.  What they fail to mention, however, is that this has not always been the case and the protection is not necessarily all encompassing.  The theory under which Title IX protections LGBTQ youth is that some discrimination against students arises because they are not conforming to stereotypes about how a boy or a girl should act, dress, etc.  In other words, a young boy dressed or acted "effeminately" would not have been mistreated had he been a girl and dressed or acted the same way.  Thus, the treatment is gender discrimination which Title IX prohibits.

The trouble with conservatives' rejection of the ESEA amendment to protect LGBTQ is threefold. First, that the Obama administration is the first to explicitly adopt the foregoing Title IX rationale. A subsequent administration could interpret Title IX differently or simply enforce it less vigorously. Second, conservatives have criticized the use of Title IX to protect LGBTQ youth.  It is a bit disingenuous for a conservative to criticize progressive use of Title IX to protect LGBTQ youth and then turn around and argue ESEA need not be amended because the administration has already taken care of the LGBTQ issue through a purported misuse of power.  Third, the foregoing Title IX theory is not all encompassing.  Some courts have not adopted it.  In addition, the theory only directly covers stereotyping.  Some LGBTQ youth are discriminated solely based on who they are, not based on a failure to conform to a stereotype.   Thus, there are some circumstances under which they may not be protected.  An explicitly anti-discrimination measure to protect them would cure this problem.  

The Senate's vote just eliminated that solution from the ESEA.

 

https://lawprofessors.typepad.com/education_law/2015/07/senate-votes-down-protections-for-lgbtq-youth-as-an-esea-amendment.html

Bullying and Harassment, ESEA/NCLB | Permalink

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