Know Your Rights: LGBTQ+ and Two Spirit Students

• Be respectful and follow the rules
• Document everything
  • Keep detailed notes about everything: dates, where things happened, who was there, who said or did what, and any other details that might come in handy. If the school gives you anything in writing or if you submit anything in writing yourself, keep copies.  If you have to fill out any forms or submit anything in writing, keep copies of those things. The more you document what you’re going through, the better your chances of getting it addressed.
• Get support
  • There are groups all over the country for LGBTQ+ and Two Spirit youth, and if you live somewhere that doesn't have one, you can probably find an online discussion forum where you can be yourself and get reassurance that you're not alone. 
• Don't just believe what school officials tell you
  • A lot of the time, school officials either don't know what the law requires them to do or they’re just betting that you won't question what they say. Don’t take their word for it! 

Anti-LGBTQ+ and Two Spirit harassment is one of the most pervasive, frightening, and potentially damaging threats LGBTQ+ and Two Spirit students face in our public schools. If you're being bullied, called names, threatened, or physically harmed at your school because of your sexual orientation, you don't have to take it.

Under the U.S. Constitution, public schools have to address any harassment against LGBTQ+ and Two Spirit students the same way they would address harassment against any other student. And a federal education law called Title IX  bars public schools from ignoring harassment based on gender stereotyping. What this all means is that public schools can’t ignore harassment based on appearance or behavior that doesn’t “match” your gender: boys who wear makeup, girls who dress “like a boy,” or students who are transgender. Nor can school officials tell you that you have to change who you are or that the harassment is your fault because of how you dress or act.

If anyone at school is harassing or threatening you, it’s crucial that you report it to a principal or counselor. Then the school has been put on notice and can be held legally responsible for protecting you. And keep notes about all incidents of harassment and interactions with the school about it. There are tips on how to effectively do this at the end of this handout. 

If you've reported harassment to your school and they've done little or nothing to stop it, contact the ACLU of South Dakota by email at southdakota@aclu.org.  

Your school does NOT have the right to "out" you to anyone without your permission, even if you’re out to other people at school.

Doing this to a young person can have tragic consequences, such as when police officers in 1997 told a young man in Pennsylvania that they were going to tell his family he was gay. He committed suicide rather than face what he feared would be rejection from his family. His mother sued, and a federal appeals court has held that threatening to disclose private information violated the teenager's Constitutional right to privacy. This applies to schools, too. 

If a teacher, counselor, or any other school official threatens to tell your parents or anyone else that you're gay and you don't want them to, make it clear that this is against your wishes. If they still do it or threaten to do so, you should contact the ACLU of South Dakota by email at southdakota@aclu.org. 

Sometimes schools try to silence students who are open about their sexual orientation. But you have a Constitutional right to be out of the closet at school if you want to be. Sometimes schools punish students for talking about being gay. Sometimes schools censor students for wearing gay-themed t-shirts, even when the shirts aren't obscene and other students are allowed to wear t-shirts expressing their views on political or cultural issues. 

In Tinker v. Des Moines, over 40 years ago, the U.S. Supreme Court ruled that students don't "shed their constitutional rights to freedom of speech at the schoolhouse gate." The only time a school can legally restrict a student's speech is when it causes significant disruption in the classroom. And while schools often use disruption as an excuse to censor student speech, there are clear legal guidelines about disruption really is. It’s not just whenever a school administrator says something is disruptive. For example, yelling, "I'm gay!" in the middle of English class isn't okay, but talking about being gay with other students between classes or at lunch is.  Nor is your speech disruptive just because someone else might not like it. And if your school's dress code allows other students to wear t-shirts about their beliefs, then it's illegal for them to ask you to take off your t-shirt just because it has a rainbow or says something about gay pride. 

If your school is trying to keep you from talking about your sexual orientation or expressing your beliefs about it, you should contact the ACLU of South Dakota by email at southdakota@aclu.org.

Gay-Straight Alliances (GSAs) are student clubs, just like Drama Club or Key Club, that allow students with a common interest to get together and have discussions or activities about that interest. GSAs are made up of students of any sexual orientation or gender identity, not just gay students. They can be support groups, social groups, or they can be activist organizations dedicated to making school safer for all students, or some combination of any of those. 

The federal Equal Access Act says that if a public school permits any non-curricular clubs, then it must allow students to form a GSA if they want to, and the school can’t treat it differently from other non-curricular clubs. Non-curricular clubs are groups that aren't directly related to classes taught in the school. For example, Math Club is curricular but Chess Club isn't. 

Starting a GSA is like starting any other club! Find out your school's rules for forming an official student organization (like getting a faculty sponsor if one is required, etc.) and then follow those rules carefully. And document everything just in case the school gives you a hard time about your GSA. There are tips on how to do this at the end of this handout. 

We've found that school officials often don't know much about the law or think they can find some way to get around it. Blocking a GSA from forming or treating it differently from other non-curricular clubs is against the law, and if your school does it you should contact the ACLU of South Dakota by email at southdakota@aclu.org. 

You have the right to be safe and to be yourself at school

• If you think your rights have been violated, email the ACLU of South Dakota at southdakota@aclu.org and explain what is happening in detail. 
• If you’re being harassed or bullied or see it happening to someone else, you should report it immediately to an administrator, counselor, or other school official. They have a legal responsibility to respond. If they don’t, email the ACLU of South Dakota at southdakota@aclu.org and explain what is happening in detail. 
• Your right to be yourself in school includes the right to be transgender or to transition your gender in school.
• There is no law that says schools can only use students’ legal names on class rosters, in the classroom, etc.
• Things to consider: 
  • What you say: You can talk and write about who you are and about issues relating to gender identity, gender expression, and being transgender.
  • What you wear: The right to free expression includes your clothes. As long as what you wear would be appropriate if worn by other students, such as a skirt or a tuxedo, then you should be able to wear it if you’re transgender or gender nonconforming.
  • Prom and other school events: If you’re a trans girl, can you run for homecoming queen? If you’re a trans boy, can you wear a tuxedo to prom? Yes!

You have the right to privacy at school

• Your transgender status, legal name, and gender assigned at birth are all confidential information. If your school reveals that information to anyone without your permission, it could be violating federal law.
• Locker rooms and restrooms: Students have a right to use school restrooms and locker rooms that correspond with their gender identity.

Educate yourself and your administrators 

• Check out and share these model school policies for trans & gender nonconforming students & advice with your school administrators:
  • https://aclu.org/schools-in-transition
  • https://glsen.org/article/transgender-model-district-policy