By: Kyra Harkins
A recently released opinion by a UN human rights expert wrote of the dangers that LGBT people face in America.[1] Victor Madrigal-Borloz spent 10 days in the United States, speaking to government officials and members of civil society, before publishing his conclusions.[2] His report, while praising the Biden-Harris administration, urged them to do more because he feels states across the country are “deliberately attacking” the rights of LGBT people.[3]
An arena where we are seeing this political difference play out is schools. States across the nation have been proposing and passing bills relating to the rights of LGBTQ children in public and charter schools. Most of these bills seek to limit the rights of LGBTQ children. While states have been passing laws that restrict the rights of LGBTQ students, the Biden-Harris administration has been taking action on a federal level to protect the rights of those children.
Shortly after being inaugurated, President Biden passed an executive order to combat discrimination based on gender identity or sexual orientation.[4] The executive order specifically provides for protection of LGBTQ youth in schools.[5] President Biden used the Supreme Court decision in Bostock v. Clayton County to instruct federal agencies to ensure the protection of LGBTQ people.[6] The holding in Bostock states that discrimination on the basis of sex includes gender identity and sexual orientation.[7]
Florida has been the subject of many political debates recently due to a new bill signed by Governor Ron DeSantis. Critics of the bill have dubbed it the “Don’t Say Gay” bill because of the ban it places on discussing sexual identity and gender orientation in classrooms.[8] Governor DeSantis said the bill was passed to prevent kindergarten-aged children from learning things that are “inappropriate”.[9] The implication that learning about sexual orientation and gender identity is inherently inappropriate for children may have contributed to Mr. Madrigal-Borloz’s report.
The “Don’t Say Gay” bill also includes parental notification requirements for schools. The law requires schools to notify parents of any changes in services provided to the student.[10] Proponents of the law argue that this allows for parental control of what children learn and are exposed to, but critics say this bill forces schools to effectively ‘out’ children to their parents, perhaps before they are comfortable. [11]
In Oklahoma, Governor Kevin Stitt has signed three bills restricting rights for transgender children this year.[12] In May he signed into law a bill that requires students to use the bathroom of the gender on their birth certificate.[13] If schools do not comply with the new law, they risk having a portion of funding from the state cut.[14] This law grants parents and students the right to report students they suspect of violating the rule, which will launch an investigation into that student.[15] In a similar vein to the messaging from Governor DeSantis, Oklahoma state Representative Danny Williams touted the purpose of the bill as protecting children across the state.[16]
Since President Biden’s executive order was announced 20 states have filed suit against the administration.[17] The suit declares that the Biden-Harris administration misinterpreted Bostock, and that the protections provided by that case should not apply to schools.[18] As of July 15, 2022 an injunction was ordered by the U.S. District Court of Eastern Tennessee barring federal agencies from following President Biden’s executive order.[19] While we wait on the outcome of this law suit, the one thing that is clear is the difference in approach of LGBTQ student’s rights by state and federal government.
[1] LGBT Rights Being ‘Deliberately Undermined’ in Some US States: UN Expert, UN News (Aug. 30, 2022) https://news.un.org/en/story/2022/08/1125842
[2] Id.
[3] Id.
[4] Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation, White House: Briefing Room: Presidential Actions (Jan. 20, 2021) https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/20/executive-order-preventing-and-combating-discrimination-on-basis-of-gender-identity-or-sexual-orientation/
[5] Id.
[6] Chase Strangio, What President Biden’s LGBTQ Executive Order Does and Doesn’t Do, ACLU: News & Commentary (Jan. 21, 2021) https://www.aclu.org/news/lgbtq-rights/what-president-bidens-lgbtq-executive-order-does-and-doesnt-do
[7] Id.
[8] Jaclyn Diaz, Florida’s governor signs controversial law opponents dubbed ‘Don’t Say Gay’, NPR (Mar. 28, 2022, 2:33 PM), https://www.npr.org/2022/03/28/1089221657/dont-say-gay-florida-desantis
[9] Id.
[10] Id.
[11] Id.
[12] Andy Rose and Paul LeBlanc, Oklahoma GOP governor signs anti-transgender bathroom bill into law, CNN: Politics (May 25, 2022, 10:22 PM), https://www.cnn.com/2022/05/25/politics/oklahoma-anti-transgender-bathroom-law-signed-stitt/index.html
[13] Id.
[14] Anne Branigin, Oklahoma just passed its third anti-trans bill of the year, Washington Post: National (May 23, 2022, 6:01 PM), https://www.washingtonpost.com/nation/2022/05/23/oklahoma-bathroom-bill-passed-legislature/
[15] Id.
[16] Id.
[17] Nico Lang, These 20 States Are Suing the Biden Administration Over Support for Trans Students, Them (Aug. 31, 2021) https://www.them.us/story/20-states-suing-biden-administration-over-support-for-trans-students
[18] Id.
[19] District Court Enjoins EEOC and Department of Education Guidance Protecting LGBTQ Rights (Jul. 25, 2022) Bassberry Sims, https://www.bassberry.com/news/district-court-enjoins-eeoc-and-department-of-education-guidance-protecting-lgbtq-rights/
