Assignment 1: LGBT Equality

Against the Current, No. 152, May/June 2011

Enku MC Ide

The Right to Be Out
By Stuart Biegel
Minneapolis: University of Minnesota Press, 2010, 320 pages, $19.95 paper

IN OUR IMMEDIATELY post-Don’t Ask Don’t Tell society, Stuart Biegel’s The Right to Be Out invites us to create a public education system where Lesbian, Gay, Bisexual, Transgender (LGBT) equality is a reality.

Biegel’s clear and concise book succeeds in shining “a light on issues relating to sexual orientation and gender identity in American public education.” Beyond this, the book could be an important resource for lesbian and gay educators, school administrators and staff, and their allies.

Stuart Biegel is a gay educator who remained closeted until 2003 and whose coming out process clearly influenced his decision to write this book. Biegel outlines 30 years of free speech and anti-discrimination litigation in the “limited pubic forum” of public education (Part I) and then, based on these findings, reviews programs and curricular changes that better support LGBT students in public education (Part II).

Currently a faculty member at UCLA, Biegel has published on education law and technology law and policy; he served as a consultant on equal educational opportunity to both the ACLU of Northern California and the National Education Association (NEA). His expertise in these areas clearly shapes the emphasis of The Right to Be Out, focusing on rights won through the courts and the often slow process by which these rights can be translated into changing social conditions.

The Right to Be Out can be read as a reference manual for public school employees, exploring “the intricacies of recent developments within the legal, educational, and public policy communities…to discern the contours of a research-based road map for tackling” homophobia in K-12 education.

The author advises that certain chapters are more applicable to particular concerns, be they coming out as students, coming out as employees, LGBT-related faculty professional development, or creating more inclusive curriculum. Each chapter, though, calls on education workers to take concrete steps to make schools safer for LGBT people. I suggest close attention to Biegel’s well-researched endnotes, which round out his argument and contain information (such as URLs) about important resources, studies, and programming that makes the book even more valuable.

The U.S. LGBT equality movement has developed unevenly in recent decades, but with some significant legal precedent being set. For example, following the increased social acceptance of lesbians and gays, the U.S. Supreme Court struck down sodomy laws in the 2003 case of Lawrence v. Texas. While state laws often criminalized any non-reproductive sexual contact, including heterosexual practices, they were used to justify discriminatory practices in LGBT employment, housing and in parental rights.

Although advocates hoped the Lawrence decision would be a watershed for LGB (and unfortunately often overlooked T) legal rights, the movement has been yet unable to push through federal workplace protections, repeal of the Defense of Marriage Act, or housing protection.

Following the Equality Across America march of 250,000 LGBT and allied activists in 2009, Don’t Ask Don’t Tell has been repealed, a benchmark of the mainstream gay movement. The federal Department of Housing and Urban Development (HUD) also,began examining housing discrimination. This is crucial as local surveys indicate that between 20% and 40% of homeless youth identify as LGBT or Queer.

The Right to Be Safe Now

According to the National Gay and Lesbian Taskforce, LGBT people are coming out at younger ages, with one survey finding an average coming-out age of 13. These youth (and those perceived to be LGBT) are significantly more likely than their peers to feel unsafe at school.

According to the NEA, 91% of gay and lesbian students report hearing homophobic slurs at school and 64% report feeling unsafe at school because of their sexual orientation. These students are five times more likely to miss school because of feeling unsafe, and harassment-related drop-out rates impact 10% of all LGBT students. Given these realities, challenging homophobia and transphobia in the schools has the urgency of a life-or-death struggle.

A string of youth suicides recently spotlighted anti-LGBT bullying in public schools. One response, the “It Gets Better” project, used online videos (with even a speech by President Obama) to tell bullied youth to bear their burden until adulthood. Biegel’s contribution, however, is aimed at providing public school workers with the tools to make schools safer places now, from supporting Gay Straight Alliances (GSAs) to speaking up for LGBT people on campus, challenging hostile school climates and introducing LGBT content into curriculum.

“Nothing is more central” to the LGBT community, Biegel writes, “than the right to be [safely] out,” leading to better mental health and quality of life. While no courts or lawmakers have ensured this right directly, Biegel relies on broadly litigated cases involving the public education system to conclude that the First Amendment (Free Speech Clause) and the Fourteenth Amendment (Equal Protection Clause), including the right to education, indicate that “all persons have a right to be open regarding fundamental aspects of identity.”

Part I of The Right to Be Out is especially important reading for legal advisors of both public school districts and teachers’ unions, outlining precedent-setting legal cases in which a “legal…right to be out” is based. Biegel uses these decisions to chart a “reasonable middle ground” for moving forward for LGBT equality during a “difficult transition period” for gay and gender-nonconforming people.

Gay and lesbian students, mainly since 2000, have asserted their legal right to be out at school — in cases involving their rights to lead LGBT student clubs, take same-sex partners to the prom or present themselves consistent with their gender identity. “These cases followed a familiar, unfortunate pattern: students mistreated by their peers for no reason other than the fact that they were either openly gay or perceived to be gay, and the adults on site not only failing to intervene but often exacerbating situations by blaming gay students for bringing it on themselves.”

Unfortunately, although Biegel uses the acronym “LGBT” throughout, no legal cases involving transgender youth appear in Part I.

The 1996 case Nabozny v. Podlensy serves as a particularly harrowing example, in which the plaintiff had been continuously and relentlessly harassed verbally and physically for five years, including “physical beatings that in one case led to severe internal bleeding and requiring surgery…a mock rape…while twenty students looked on and cheered; [and] being intentionally urinated upon by fellow students.”

School employees condoned such acts and “blamed Nabozny for bringing all this on himself by being out,” regardless of the fact that Wisconsin (where this torture took place), legally prohibited harassment on the basis of sexual orientation. The courts sided with Nabozny, providing the first litigation to find “a public school district liable for discriminating against an LGBT person under the Fourteenth Amendment.”

As epitomized by the Nabozny case, in-depth detail of abuses against LGBT youth in Part I may be emotionally difficult for LGBT readers who have experienced harassment and discrimination. However, a working knowledge of the types of abuses that LGBT people have faced is essential in the education of straight allies, and Part I can serve this purpose.

By the nature of reviewing precedent-setting court cases, Biegel covers extreme cases that should be understood not as the “normal” experiences of LGBT students, but rather as “extreme manifestation[s] of pervasive cultural norms” of patriarchy and heterosexism with which LGBT people must continually struggle, with the greatest impact generally against transgender people ranging from harassment and discrimination to physical violence.

While Biegel does not discuss current “austerity” pushes, it seems that in the context of massive budget cuts and attacks on public services, public employees and their unions, exercising one’s rights as a public employee may be even more challenging than the already sobering picture Biegel paints.

LGBT educators often face the choice of being employed and closeted or out and unemployed. Unlike student cases, “no education [employment] cases addressing alleged discrimination on the basis of LGBT status have yet reached the U.S. Supreme Court,” making legal precedent less secure than in the case of students, especially as recent “questionable lower court decisions…appear to have curtailed the First Amendment rights of public educators.”

This dynamic also harms LGBT students who are denied the guidance and support that out teachers and staff can provide, especially those students whose families and communities uphold gender norms and compulsory heterosexuality.

Modes of Resistance

Legal precedents, principles and guidelines of Part I serve as important guiding information for the more practical discussions in Part II. However, the 160-page discussion of litigation might leave some readers with the impression that court action is the best, or only, option for LGBT people for asserting their rights when abused.

Implicitly, we can recognize strong, reciprocal relationships among social movements, courts and legislatures in both creating and implementing legal and social change. These connections are generally overlooked. No mention, for example, is made of educators being supported by their unions.

Part II “explores research-based principles that can inform” initiatives to make public education safer and friendlier for LGBT people through “professional development…creative initiatives to address school climate; and the establishment of LGBT-specific programs.” Biegel warns that “during this transitional era,” “LGBTs will need to be relatively thick-skinned if they choose to be completely out in K-12 public education settings.”

For most readers, including teachers and allies, this section will prove more helpful in taking action in the “ongoing battle” for the safety and equality of LGBT students and educators. Recognizing that “victories in the legal arena do not necessarily translate into substantive and effective change…[but may be] only the first of many steps…before stated goals are actually accomplished,” Part II introduces programs, concepts, and pedagogical and curricular resources that have been developed to address the needs of LGBT students across the country.

Unfortunately, the analysis here is often shallow, relying on organizational vision statements or goals but lacking a deep view of the relative strengths of particular programs. Readers will have to find which are most applicable to their own work. Having many resources listed topically, however, will still prove useful to equality-minded educators and school staff as a starting place for their research.

In addressing school climate and LGBT-related professional development, the author outlines principles that respect the “middle ground approach” as reflected in both court decisions and educational research.

These call for holistic and collaborative trainings for both students and employees and include voluntary community meetings. Some activities may involve students through creating programs such as Safe Zones, often classrooms or staff offices that are advertised as safe places for LGBT students, supporting Gay-Straight Alliances to empower youth, suicide prevention programs or providing a range of resources for LGBT students.

While such suggestions are welcome, Biegel’s discussion is often much weaker than his earlier previous discussions of LGBT-related litigation. There are few in-depth case studies of successful programs.

Biegel is stronger in discussing principles such as undermining heteronormativity (the assumption that all students are straight, that “it is normal to be heterosexual” and not to be anything else, and treating LGBT students “as if they were invisible”) among faculty members. But for educators interested in implementing these programs, the most helpful resources may be talking directly with other educators who have created and supported such programs on their K-12 campuses.

Although LGBT-related curricular content is often controversial, “LGBT issues arise in our society on a regular basis … [and] the inclusion of such material is consistent with the principle that schooling is most effective when it addresses the world as it currently exists,” as long as such material can be linked to statewide curricular standards. Biegel addresses many resources and approaches for incorporating this material into the classroom.

Beyond the classroom, Biegel discusses the immense problem of homophobia in organized sports and encourages “active involvement of persons from within the campus sports community, [without which] change may be very slow in coming.”

As in many of the examples of litigated cases from Part I, a thorough understanding of the contours of homophobia and transphobia in organized sports is important in seeing how heteronormativity affects the lives of many LGBT people.

Putting T in LGBT

Many transgender people and their allies have highlighted the trend in the often-gay dominated LGBT movement of “tacking the T” on the end of the acronym and not fully incorporating the needs, leadership, voices and experiences of transgender people into the movement.

Biegel has in many ways replicated this trend in The Right to Be Out, devoting just one chapter to “Confronting the Challenges Faced by Transgender Youth,” but neglecting analysis of transphobia and the experiences of transgender people throughout the rest of the book. For those who are already familiar with the transgender community, The Right to Be Out provides very little new insight.

Discussions of gender-identity are often based in the tie between gender norms and sexual orientation, and almost all stories of transgender people are reserved for Biegel’s one chapter.

Even with this problem, the chapter is clear and helpful as a brief introduction for those unfamiliar with transgender issues. This is a crucial topic in that “even a significant percentage of those who are incredibly supportive of gays — and in fact many gays themselves — still see transgender not only as odd, strange, and deviant, but as embodying an unacceptable form of deceit.”

Beyond extending programs and curricular development to be inclusive of transgender people, the author recommends taking seriously the use of proper names and pronouns for transgender youth, providing safe and appropriate access to restrooms and locker rooms, and allowing dress codes to reflect one’s gender. As transgender people face significant social disadvantage, providing a safe and healthy schooling environment is crucial.

Central to the book is the fact that LGBT issues and other topics pertinent to nation-wide struggles will be discussed in some way in our public schools. Personally, I came of age as a young queer person in a rural, deeply religious and conservative public school district in south Mississippi. LGBT topics were an obsession of some teachers, who used their authority to demonize and, in extreme instances, call for the incarceration and/or murder of LGBT people.

While some of my teachers were somewhat supportive of LGBT people, none were truly informed of, or sensitive enough to, our needs. Providing them with a book like The Right to Be Out could have helped them develop this needed understanding.

Although my rights and those of other LGBT students were routinely violated, we did not know our rights (nor were we out). Despite the limitations I’ve outlined, I would not hesitate to recommend Biegel’s book to anyone working in the public education system. Some parts are more relevant to particular education-related professions, but as a whole it contains valuable lessons and resources for LGBT public school employees and allied coworkers.

ATC 152, May-June 2011