How the First Amendment and Free Speech Law Protect LGBTQ+ Youth
LGBTQ+ youth may encounter policies and practices that violate their free speech and free expression rights under the First Amendment. These violations often occur at school. Students may find themselves discriminated against or punished for expressing or discussing their sexual orientation or gender identity on school grounds. LGBTQ+ youth have the right to be out at school and in other environments, however. Schools may not violate your First Amendment right to express yourself unless it is significantly disruptive in a classroom or learning environment. This means that schools may refuse to accommodate a student’s desire to stay silent on GLSEN’s Day of Silence during classroom instruction, but they should allow students peaceful expression of their beliefs during non-curricular portions of the day.
Right to Meet and Organize
Under the First Amendment and Equal Access Act of 1984, if a school allows non-curricular groups to form and meet at the school then all non-curricular groups must be allowed to meet under equal terms. This ensures that LGBTQ+ groups are able to access the yearbook and student bulletin board, make announcements, and conduct publicity activities just as any other club or non-curricular group on campus would.
Time, Place, and Manner Regulations
The time, place, and manner of these communications can be regulated as long as the regulations apply equally to all groups.
The Equal Access Act applies to public secondary schools that receive federal funds if they permit even one non-curricular group to meet at school during times that are not instructional. This law was originally passed due to lobbying by religious student groups, but it applies to all groups, including those with an LGBTQ+ member base or focus.
Schools may not stop a group from choosing to use words such as “gay,” “lesbian,” “bisexual,” or “transgender” in its name, or condition the group’s existence on requirements that the group meet for broader diversity purposes. An exception exists when students’ verbal political expression is school-sponsored and is also vulgar, obscene, offensive, lewd, or likely to disrupt the learning environment or invade other students’ rights.
Expression Through Apparel and Gendered Dress Code
In general, students are allowed to express themselves through their apparel, including T-shirts, with messages and symbols such as rainbow ribbons or pink triangles. Wearing an LGBTQ+-positive T-shirt is protected under the First Amendment. However, a school is allowed to ban obscene, threatening, lewd, or vulgar speech. In order to restrict a student from wearing a particular T-shirt or pin, a school must demonstrate that there is an actual threat to school order that would materially disrupt the learning environment.
Similarly, a school is not permitted to have a different dress code for girls than it has for boys. Both the Equal Protection Clause and Title IX prohibit a school that receives federal funds (or that is associated with another school that receives federal funds) from forcing students to conform to sex stereotypes. Boys cannot be required to wear tuxedos and girls cannot be required to wear dresses, for example.
Schools can impose gender-neutral requirements for expected day-to-day or formal attire, as long as it doesn’t create undue financial burdens.
Dates for School Events
Courts have ruled that the choice to bring a same-gender date to prom is a political statement protected under the First Amendment. In those cases, the school’s fear of disruption was not sufficient to justify stopping the student from coming with their date, and the school was required to provide security to keep the couple safe in the event of harassment. This general rule applies not only to prom, but also to homecoming and other school events. Schools may not imply that students can bring same-sex dates but are not allowed to participate in the same ways as their cisgender or heterosexual classmates.