Rainbow Over Capitol Hill?

Audience Analysis: The audience of this paper will include United States Representative Steny Hoyer, a Democrat from Maryland’s 5th district, which encompasses College Park. Since 1981, Hoyer has sponsored several progressive pieces of legislation, including the Fair Minimum Wage Act of 2007, and the Employment Non-Discrimination Act of 2007 (“Steny’s Legislative Information”). While Hoyer has not advocated for any legislation protecting Sexual Minority Youth in schools, he did recently announce his support for same-sex marriage. I will be appealing primarily to those officials, like Hoyer, who share my views on LGBTQ rights, and I will focus my attention on building a case for why protections for SMY are necessary at the federal level.

It promised to be a most memorable first date— dinner, ice cream, and an evening stroll up and down Main Street in Princeton, NJ. The only "problem" was my date's gender. His name was Matt, and he was another boy. In addition to "first date jitters" from the prospect of holding hands or the possibility of a goodnight kiss, I was riddled with stress about the response we would receive from those who saw us. Strangers may not take much notice, but what about those who knew us from school? What would they think? Rather than choosing the evening's location based on romantic appeal, we chose it because it was not in our hometown. Yet the possibility that anyone we passed on the street could have been from our high school sent paranoia crackling through my 18 year-old, hormone-laden mind. We both knew how judgmental teenagers can be, and so the thought of what they could say if they saw us was too frightening to imagine.

The injustice of it hit me while we sat on a bench and I casually put an arm around him. A group of teenagers walked by and Matt, recognizing one from school, quickly slid away from me until the threat was gone. A scream of frustration welled up inside me. How did an innocent first date turn into a minefield of paranoia and stress? How did American schools get to a point where the use of armed guards is permitted in order to prevent gun violence, yet Sexual Minority Youth students face bullying, discrimination and intimidation without so much as a Kevlar vest?

Across the country, Sexual Minority Youth students are the recipients of disproportionately high levels of harassment compared to their heterosexual peers. Sexual Minority Youth, or SMY, is an at-risk group generally encompassing anyone between the ages of 12 and 19 who reported having same-sex attractions or a relationship with a same-sex partner (Burton et al. 394). In schools nation-wide, SMY are singled out by their peers, and, in some cases, adults, by way of bias attacks, bullying, and general disdain. Studies conducted by University of Pittsburgh Psychologist Dr. Chad Burton make clear that "…elevated levels of sexual minority-specific victimization" exist within the SMY population (Burton et al. 398). This distinct form of bullying refers to harassment that is motivated solely by the victim's actual or perceived sexual orientation, thus making it clear SMY get singled out for their sexuality. Burton goes on to link this increased rate of harassment with the "higher prevalence of depressive symptoms and suicidality in SMY" when compared to heterosexual youths (Burton et al. 398). Rather than simply proving SMY face elevated levels of bullying, this data shows clear causation between this harassment and the disproportionately high frequency of mental health problems in victimized SMY students.

At this point in time, there exists no standardized protection for SMY students in public schools. There is no clear, federally-established legal pathway through which SMY can obtain justice for harassment, only complicated and convoluted legal hoops for them to jump through. With no overarching national guidelines for regulating bullying based on sexual orientation, decisions on this matter have become left up to the states. Even more problematic than its lack of consistency, only 17 states have acted to require schools to adopt rules that specifically prohibit bullying based on sexual orientation (Gill 2014). At such a lackluster rate the thousands of SMY students in those 33 states without protective laws face years of further turmoil. Given the stagnation of visible progress in combating anti-SMY stigma in schools, Congress has the obligation to enact federal anti-bullying legislation that would prohibit harassment and discrimination based on sexual orientation in public schools.

In this paper I will further analyze the plight of the SMY student, which I briefly outlined above. By providing data on both bullying and the myriad negative consequences associated with bullying, such as the high mental illness rates and consistent poor performances of SMY students in schools, I will establish the exigency for action on behalf of this group. Through research on current states' actions, and the lack thereof, it will become clear that our approach to this problem has to change. I will then endorse two proposed national bills, the Safe School Improvement Act (SSIA) and the Student Non-Discrimination Act (SNDA), which, with further advocacy, have the potential to protect thousands of SMY students. Finally, I will refute critics who maintain the situations in schools do not necessitate federal action on behalf of Sexual Minority Youth.

There is a growing body of research that seeks to gather data on the stigma SMY face and its adverse effects. Dr. Chad Burton, and a team of psychologists at the University of Pittsburgh, asked some 200 participants in a recent study if they were ever "…teased, bullied, treated unfairly, or called bad names" because someone thought they were gay, lesbian or bisexual (Burton et al. 396). The results, published in 2011 in the Journal of Youth and Adolescence, demonstrated that SMY experience more of these negative pressures than their straight peers (Burton et al. 396). In fact, according to research published in 2011, by Alicia Fedewa and Soyeon Ahn in the Journal of GLBT Family Studies, the odds of being bullied as an SMY student were roughly "124% higher than for heterosexual youths" (409). In other words, for each heterosexual teen that is bullied, more than two SMY students are victimized. These statistics expose the epidemic that is bullying culture in American schools.

Reproachable acts of SMY-targeted harassment can often trigger traumatic effects in victims. Dr. Ilan Meyers, Associate Professor of Sociomedical Sciences at Columbia University, first postulated that the high levels of discrimination SMY face result in the group's experiencing higher rates of mental distress than straight teens (Hatzenbuehler 711). Meyer's Minority Stress Theory has been widely supported by various studies, including one conducted in 2011 by professors from the Center for Research on Health and Sexual Orientation at the University of Pittsburgh. Results from this study showed that "on average 28% of SMY reported a history of suicidality" (Marshal et al. 119). This means that over one in five SMY individuals has either contemplated or attempted suicide in their brief lifetime, as opposed to just 12% of heterosexual youth (Marshal et al. 119). While any rate of adolescent suicide is worthy of action, the fact remains that the urgency for action is much more pressing for Sexual Minority Youth.

Bullying culture is not simply a matter of "kids being kids." The victims cannot just "rub some dirt" in their wounds and "get over it." Harassment is wrong. Harassment based on sexual orientation is especially personal because it targets an aspect of the victim that they cannot change. According to the latest research published by the Gay, Lesbian and Straight Education Network (GLSEN), the highest reported form of harassment across the country was hearing terms like "gay" used in a derogatory manner. Prevalence varies by state, but at least 80% of all SMY students surveyed in all 50 states reported being called names, such as "fag" or "dyke" (GLSEN: Alabama, California, Kentucky, Maryland, Texas). The history of hate associated with these terms carries extra weight in a verbal assault. The harassment does not stop at words, sadly. In 2013, 17% of SMY students in the country reported being "...punched, kicked or injured with a weapon" simply because of their sexuality (Kosciw 23). The relentless torment many SMY students experience results in the serious mental health effects discussed above, as well as severe academic consequences.

High levels of stress caused by harassment, intimidation and bullying make it significantly harder for SMY students to perform up to their full academic potential. A study published in 2014 in the Journal of LGBT Youth measured high school performance of about 11,500 SMY and heterosexual students. Results showed "LGBTQ youth were more likely to report poorer grades [than heterosexual students]" and that "greater victimization was associated with poorer grades" (Aragon et al. 8). The telling fact here is that simply identifying as SMY places students at a disadvantage in school. In this study, Aragon, Poteat, Espelage and Koenig, point out that any additional harassment or bullying directly contributes to a decrease in grades for SMY students. Further research revealed "greater victimization was associated with greater odds of not expecting to finish high school...and lower odds of expectations to attend a four-year college" (Aragon et al. 9). SMY students who experience endless torment in high school have little desire to put themselves through an additional four years. In a nation in which earning a college degree increases an employee's average wage by about 98%, there is a huge economic incentive in making high schools more welcoming and accepting of Sexual Minority Youth (Leonhardt). Bullies are robbing SMY students of a safe learning environment in high school, and only by restoring that sense of safety will we be able to facilitate improved academic performances from SMY students and a greater commitment to acceptance among the entire school community.

Public schools have a legal obligation to protect SMY students from bullying. As of 2013, about 82% of students across the country have some sort of anti-harassment or anti-bullying policy in place at their school; however, only about 10% of these students reported a policy that specifically enumerated protection based on sexual orientation (Kosciw 61). Despite this astonishingly low percentage, there is a legal precedent in place that requires public schools to act on behalf of SMY students who experience sexual orientation based harassment. In 1996, the case of Nabozny v. Podlesny drew national attention to the issue of sexual orientation bullying. After enduring years of verbal and physical harassment because of his sexual identity, Jamie Nabozny faced apathetic school officials, who not only failed to act on his behalf, but also mocked him for his "gay behavior" (Stader et al 119). Jamie sued, even though school administrators were technically not in violation of any existing law (Stader et al. 119). After a hearing, however, the Seventh Circuit Supreme Court found Ashland Middle School liable of negligence in the way officials failed to adequately discipline the offending students. In the verdict, judges explained that they '"[were] unable to garner any rational basis for permitting one student to assault another based on the victim's sexual orientation…"' slamming the school district with a hefty fine, which, after negotiations, reached $900,000 (Stader et al. 119). The legal precedent set by Nabozny v. Podlesny holds public schools accountable for treating and disciplining all instances of bullying, regardless of its nature or basis.

Despite being responsible for protecting all students equally, regardless of sexual orientation, many schools systematically fail to do so. During 2010, about 85% of LGBT students across the country experienced some form of sexual orientation based harassment, yet "only 37.6% reported the incident to school staff" (Hannah). Many students polled felt that school officials would do nothing to actually remedy the situation. GLSEN found in 2013 that only "one fifth of students reporting harassment indicated that the perpetrator was disciplined by school staff" (Kosciw 34). Even more startling is the fact that 10% of victims who reported harassment were themselves subjected to further bereavement from administrators. (Kosciw 34). Failing to protect students from harassment, even when they seek out the help of trusted adults, perpetuates bullying culture in schools. If bullies are never held responsible for their actions, there is nothing to stop them from continuing the harassment they dole out to SMY students.

State governments have the authority to impose regulations that would require public schools to issue comprehensive anti-bullying laws, specifically enumerating sexuality-based harassment. States can also investigate instances of neglect, as in the case of Nabozny v. Podlesny, to ensure that student victims can obtain legal remedies and remunerations should the schools fail to uphold their legal and moral responsibilities. The reality is, however, state governments are not responding fast enough to the threats Sexual Minority Youth face. In total, only 17 states and the District of Columbia have implemented laws that specifically address harassment based on sexual orientation (Gill 2014). Not surprisingly, only those states have seen decreases in the instances of verbal and physical assaults. For example, in a 2013 national study GLSEN found that in Texas, a state lacking a comprehensive anti-bullying law, 79% of students reported verbal harassment and 18% reported a physical assault because of their sexual orientation (GLSEN: Texas). In contrast to this, students in Massachusetts, which has a law requiring schools to implement anti-bullying rules, reported significantly less victimization. In the same study, GLSEN reported just 58%, and 9% of Massachusetts' students who indicated verbal harassment and physical assault respectively, because of their sexual orientation. (GLSEN: Massachusetts).

The protection these seventeen statewide laws provide is limited to the jurisdiction of those specific states, and DC. This gap in coverage necessitates an over-arching federal statute to ensure all schools in all states offer protection to their SMY students. Historically, the 18 instances of inclusive laws protecting SMY youth were slow in coming. The earliest sexual orientation-specific piece of legislation was passed in 2001, 29 years after Title IX began protecting against harassment in schools on the basis of sex or gender, and 37 years after Title IV of the Civil Rights Act banned discrimination on the basis of, among other things, race ("Types of Educational Opportunities Discrimination"). Sexual orientation is a polarizing issue in many states and localities of the US; opinions on sexual minorities are often heavily dependent on religious views and local cultural perspectives. It is almost understandable, then, that school administrators and state officials in some states have been hesitant, and, in some cases, outright opposed to imposing politically unpopular comprehensive anti-bullying rules to include sexual orientation. A federal law would allow SMY youth to be protected and states who have constituents who oppose those protections to save face. Politicians in those states would be free to protest the heavy-handedness of federal action being taken to protect a community to which they do not feel obligated, and SMY youth would receive much greater protections against verbal and physical assaults.

Having exhausted all other reasonable options, Sexual Minority Youth now require Congressional action to regulate public schools. LGBTQ activist groups currently support two pieces of federal legislation meant to protect SMY students: the Safe School Improvement Act (SSIA) and the Student Non-Discrimination Act (SNDA). The former requires the implementation of comprehensive anti-bullying policies in all public schools, while the latter creates a legal avenue for SMY students to pursue, should they feel wronged by bullies or administrators on the basis of their sexual orientation. Both bills have only been proposed to Congress, having yet to even see a vote.

If passed, the SSIA would require all federally funded schools to include in their codes of conduct policies prohibiting "bullying or harassment conduct based on a student's actual or perceived race, color, national origin, sex, disability, sexual orientation…" ("Safe Schools Improvement Act…"). The specific enumeration of sexual orientation is crucial for the protection of SMY, seeing as the Supreme Court recognizes the enumeration of characteristics as one of the most effective tools in combating bullying. According to a report by Lisa Connolly, J.D, "Enumerated legislation…sends an unambiguous message that homophobic behavior is intolerable on school grounds" (261). This is precisely the message the SSIA would send. At its core, the SSIA would assure that all public schools consider calling someone a "fag" harassment, as it singles the victim out for his or her sexuality. That harassment would become subject to much stricter forms of punishment than before the SSIA is implemented. Finally, this legislation will acknowledge that SMY students are just as important and deserve the same treatment and protection as their heterosexual peers.

Alone, the SSIA is a step in the right direction for SMY protection in schools. In conjunction with the SSIA, however, I am also endorsing the Student Non-Discrimination Act (SNDA), in an effort to maximize the effectiveness and positive change that would come from the two. The SNDA proposed in 2011, would also prohibit discrimination in federally funded public schools. In addition to this, however, the SNDA "would provide a private right of action allowing individuals to sue in federal court for violations of the act" (Feder 1, 4). If a student comes to a teacher or school administrator claiming to have been victimized because of their sexuality, that adult would be required by federal law to treat the incident just like any other serious harassment case. If he or she fails to do so, or chides the victim for "disrupting class time," the victim has a concrete path of litigation they can pursue. In providing this legal route, the SNDA emphasizes that students are no longer at the mercy of apathetic or unsympathetic administrators. In the case of Nabonzy, the school officials who failed to discipline the teen's harassers would have been in clear violation of the Student Non-Discrimination Act, and the Nabonzy's would have a firm legal ground on which to build a suit. The threat of costly lawsuits from the SNDA will force compliance of the SSIA in all schools.
Critics of passing comprehensive anti-bullying laws cite existing avenues SMY students can pursue to obtain legal justice for sexual orientation-based harassment. Lawsuits have been filed and successfully litigated that claim school administrators violated Title IX by failing to punish bullies who victimized students based on their sexual orientations. To critics, the success of cases, such as Nabonzy, in providing legal remedy to SMY students, prove sufficient enough to negate the need for any further legislation. The problem with such a rebuttal is that Title IX only specifically protects students from discrimination and peer-on-peer harassment on the basis of sex or gender (Kosse 57). In a legal review of sexual orientation-based bullying lawsuits, J.D. candidate Jason Wallace finds cases that have seen Title IX extended to sexual orientation-based harassment to be the exception and not the rule, attributing the victories to unusually "receptive courts" (748). In all actuality, Wallace notes "in order to protect gay…victims under Title IX, courts must necessarily perform legal 'contortions' to shape…claims into permissible causes of action" (746). Simply put, extending existing laws to protect SMY students often requires legal tactics viewed as dubious-at-best by the general public. SMY students should not have to rely on convoluted courtroom tactics in order to protect them via existing, gender-based Title IX protections.

Title IX also contains limitations with its ability to handle peer-on-peer harassment. Associate Professor of Law, Susan Kosse, at the University of Louisville, remarks in a legal analysis of anti-bullying laws that "Title IX...is not enough. Title IX does not require schools to adopt written policies prohibiting sexual harassment" (68). Title IX does nothing to tackle the root of the problem: the unequivocal culture of bullying in schools. Jason Wallace recognizes this limitation in his review, stating "Court verdicts alone will not bring an end to bullying" (Wallace 760). Statistics discussed above support the rampant nature of bullying, specifically against SMY students, in America. Title IX fails to address this culture, in that it holds school districts responsible for their apathetic inaction, rather than holding bullies responsible for their heinous actions. Kosse goes on to explain, how she believes the US "can close this gap, by passing laws that require schools to specifically define the types of harassment prohibited" (Kosse 68). In other words, enumerating the factors that can act as triggers for bullies would be the most effective method in curbing such actions. This is precisely what the SSIA and the SNDA would require schools to do if those bills are passed. Only when these bills are signed into law can progress be made in combating SMY targeted bullying.

The average SMY student today does not have the luxury of worrying if her home state will pass marriage equality, if the state she wants to move to will offer her and her partner spousal tax benefits, or what will happen if she ever needs to visit her partner in the hospital. These issues, while each very important, are too distant and abstract for an SMY student to dwell on, when she faces harassment every day in school. Instead, she is worried about her test in history tomorrow. She has skipped the last week of classes because she was worried about verbal and/or physical abuse at the hands of more "popular" classmates who think it is fun to call her a "dyke." Over the past year, while politicians spent nearly four billion dollars on the 2014 midterm elections, bullies forced some 61% of SMY students to stay home rather than face this sort of harassment and abuse waiting at school (Frates, Kosciw 49). Each day that these victimized students go without receiving the requisite attention of Congress, is another day closer they come to failing out of school, avoiding secondary education, or most drastically, adding themselves to the 28% of SMY who end it all before it has a chance to get any better. It does not need to be this way, however. If the SSIA and the SNDA become law, and SMY students receive the protection they are due, these children can have the chance to truly appreciate education, and will be set on a path towards a more civically enlightened future, guaranteeing a stronger supportive voice for those hot-button topics, like marriage equality.

A few days after our date, Matt and I were discussing the plight of SMY in America today. We both feel the overall climate towards LGBTQ members is warming up, citing prominent musicians, celebrities, and even politicians, who have either come out in support of LGBTQ rights, or as members of the community themselves. It therefore stumped us as to why, if acceptance was on the rise, we both felt branded with red "Gs" on our shirts that night in Princeton. If we really had nothing to worry about, why were we so apprehensive about someone we knew seeing us on our date? With schools and states neglecting to address the exigent situation in front of them, it will take courageous representatives like you to incite the necessary social change. Until further support is garnered on Capitol Hill for the Safe School Improvement Act and the Student Non-Discrimination Act, SMY will continue to be targeted viciously and unfairly because of their sexual orientation. By passing these laws you can, in the words of Lisa Connolly, who received her J.D. from New York University School of Law in 2012, "construct a reality that leaves no room for anti-[SMY] bullying" (Connolly 248). The SSIA and the SNDA are the first mandatory steps toward wiping out sexual orientation-fueled harassment and bullying from the hallways and the everyday culture of American schools.