Lesbian, gay, bisexual, transgender, queer and/or questioning (LGBTQ) youth are often targets of bullying and harassment due to their sexual orientation or gender identity. Bullying and harassment may be verbal or involve physical assault. Sixty percent of students who are bullied or harassed at schools do not report the bullying to school officials because they believe there will be no response, and in fact when these incidents are reported to schools, about one-third of those who reported said no subsequent administrative action was taken.
Harassment in Schools
The Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution protects all students, including those who identify as LGBTQ. A school (or any public official) must have a rational basis for discriminating against LGBTQ people; this means that there must be a reason for the discrimination that is more justifiable than the mere existence of public animosity for LGBTQ individuals. In public schools, school districts are required to protect students from anti-LGBTQ harassment and discrimination in the same manner they would protect students from other types of harassment.
If bullying or harassment takes place in a school that receives federal funding and the school does not address it appropriately, you may have a viable Title IX claim. Title IX provides that nobody may be excluded, denied benefits, or subject to discrimination under any education program or activity that receives federal financial assistance.
Both the Department of Education and some courts have found that harassment based on sexual orientation and gender identity is a subset of the already recognized instances of sexual harassment and discrimination that are prohibited under Title IX. School districts are considered to be in violation of Title IX and the regulations of the Department of Education’s Office of Civil Rights when student harassment based on sex is serious enough that it creates a hostile environment and the school’s employees tolerate, fail to adequately address, or ignore it.
To establish a Title IX harassment claim, you will have to show that (1) the harassment is so severe, pervasive, and objectively offensive, and it so effectively takes away from your experience, that you do not have equal access to educational resources and opportunities, and (2) the school district had actual knowledge of the harassment. A school’s failure to enforce an anti-bullying policy may amount to deliberate indifference that triggers liability under Title IX. The critical issue is whether the school’s response is found to be “reasonable.”
If you experience discrimination or harassment at school, you can report the behavior to a teacher, counselor, or administrator. Your school or school district may have a Title IX coordinator, and if so, there may also be a policy on discrimination and harassment that specifies to whom you should complain. At the time the harassment occurred, you should document all incidences of bullying, including a narrative of what happened and the date.
The school is required to respond to your complaint and do what it can to stop the discrimination or harassment. This may include separating you and the harasser, providing counseling, and training the school community so that everyone recognizes harassment and knows how to respond to it in the future. You should not be disciplined or punished for being harassed. Additionally, under the United States Constitution, public schools must protect LGBTQ students and address any harassment against them in the same manner that they would address harassment against other students.
Bullying and Harassment Outside of School
No federal law directly addresses bullying by private individuals outside of school. However, many states have anti-bullying laws, which may provide additional guidance and offer possible remedies. Some states and some counties or cities also have anti-discrimination laws that expressly protect LGBTQ students. If you (or your LGBTQ child) are bullied outside of school, your ability to obtain relief depends on the nature of the bullying.
Social media bullying is common. You should inform your child’s school of any bullying that you are aware has occurred on social media if the bully attends the same school or school district as the victim. You can also notify the police and district attorney’s office. There may be state statutes that address cyber-harassment, which could apply to your situation. You should consult an attorney about your state’s cyber-harassment laws.
If the bullying is physical and involves personal injuries, there may also be civil remedies available to you in state court based on common law. For example, if you have been physically attacked based on your sexual orientation or gender identity, you may be able to bring claims of civil assault and battery and intentional infliction of emotional distress. You may also have grounds to obtain a restraining order. Where a bully’s parents know of the bullying and fail to correct the problem, you may also be able to sue them based on claims of negligent entrustment or statutory parental liability. It is wise to consult an attorney about your civil lawsuit options in this regard.