Download 1 LGBT YOUTH Ohio is not a leader in protecting LGBTQ youth. The

LGBT YOUTH
Ohio is not a leader in protecting LGBTQ youth. The state has no law that bans discrimination
based on sexual orientation or gender identity.
Ohio Schools
There are no safe schools laws in Ohio. There is no specific protection for LGBTQ students. In
some cases, the reason give by state legislators is such protection would interfere with religious
beliefs.
Bullying
In 2006, the legislature passed a law that required Ohio’s 723 school districts to develop antibullying policies. There are no enumerated categories contained in the law. So, it provides limited
protection for students in general and no specific protection for LGBTQ students.
During the 2011-2012 legislative session, Representatives Antonio and Stinziano introduced HB
208. The bill would have amended Ohio’s anti-bullying law to specify the categories of persons
would be protected. The bill died in committee.
In 2005, the Ohio ACLU contacted administrators at Dublin Jerome High School. The school was
demanding that students wearing t-shirts supporting gay marriage take them off. They based their
decision on another student being offended.
The school administration did not take similar action against other students sporting shirts with
various messages. Administrators changed their mind after receiving the letter. Students were
allowed to wear the shirts.
The Ohio anti-bullying law applies only to public schools. It does not apply to private schools.
The law defines "harassment, intimidation, or bullying" as any intentional written, verbal,
electronic, or physical act that a student has exhibited toward another particular student more than
once and the behavior both:
• causes mental or physical harm, and
• is sufficiently severe, persistent, or pervasive that it creates an intimidating, threatening,
or abusive educational environment for the other student.
The law prohibits physical and verbal abuse and harassment. The law also prohibits
“cyberbullying”. This includes all tools that can be used for electronic communication. And, the
cyberbullying need not occur on school property.
The law requires school districts to publish their bullying policy in the student handbook every
year and to include the policy in school employee training materials. Also, the policy and an
explanation of the seriousness of cyberbullying must be made available to students and to their
custodial parents or guardians.
See: http://www.ohiolegalservices.org/public/legal_problem/students-schools/bullying-inschools/qandact_view
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Hate Crimes
Ohio’s hate crimes law does not specifically address sexual orientation, gender identity or gender
express as a motivating factor. This makes it easier for law enforcement and the courts to ignore
the underlying reasons for an attack.
The Ohio law, ORC 2927.12, specifically mentions only race, color, religion or national origin.
Out-of-Home Youth Placements
Some estimates place the number of LGBTQ young people in out-of-home placements at over
260,000. They enter the system because of truancy, dropping out of school or being thrown out of
the home by their parents. The National Network of Runaway and Youth Services estimates that
20-40% of homeless youth are LGBTQ.
Few foster care facilities prohibit discrimination based on sexual orientation or gender identity. In
Ohio, state law does not prohibit such discrimination. And, state law does not protect young
people from such discrimination in foster care placements. This can result in the youth running
away from placements because of the way they are treated.
LGBTQ youth in foster care have the right to privacy and safety. They have the right to be treated
fairly by the system and in the foster placement. These young people should not automatically be
placed in group homes. While this might be the best placement, it should be a considered decision
rather than a knee-jerk reaction.
Placing LGBTQ youth with families is usually a better way to proceed. Most of these young
people have been forced out of their home by parents and family members. Having a stable
family environment will help them adjust to their changed circumstances.
The foster parents and other caregivers need training on working with LGBTQ kids. Following
the initial placement, there may be disruptive behaviors due to the child’s experiences. Having
trained adults will help the child adjust.
LGBTQ youth should not be classified by their sexual orientation or gender identity without the
child’s consent. Doing so may place the child in danger with others. LGBTQ should never be
classified as “sex offenders” because of their gender identity or sexual orientation.
Placements must be based on the facts of each individual case. This is not a one-size-fits all
situation.
All youth are legally entitled to receive quality health and educational services. This includes
mental health services. The young people in state custody are entitled to receive relevant sexual
health education. This education cannot be limited to claims that heterosexuality is the only
option.
LGBTQ youth cannot be forced to participate in church or other religious activities. This is true
even if the foster parents believe such activities or attendance will benefit the child. In particular,
children in these placements have the right not to be subjected to anti-gay religious activities.
Transgender youth have the right to access health care and mental health services with
appropriately trained professionals.
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It is important to remember that children placed in foster care or group homes do not lose their
legal rights. They have rights under the United States Constitution. This includes the right to not
be placed in unreasonably restrictive conditions or confinement.
LGBTQ youth who have been placed in state custody have first amendment and equal protection
rights. And, they have the right to seek legal representation when those rights are violated.
Juvenile Justice
Juvenile courts exist in all 88 Ohio counties. Some of the smaller counties combine Juvenile
Court with Domestic Relations court.
Juvenile court deals with issues involving minors. Young people who become wards of the state
have been deemed “neglected or dependent children” under Ohio law.
For LGBTQ youths that are in state custody, getting a lawyer may be difficult. And, the lawyers
appointed to represent them may have no experience dealing with sexual orientation or gender
identity issues.
Proms
LGBTQ students have the right to attend their high school prom with the person of their choice
and dressed in clothes of their choosing. Every spring some high school, somewhere, decides a
gay or lesbian student cannot attend prom with a same-gender date. And, every spring the ACLU
gets involved. And, every spring, the school ends up losing the fight and paying the student’s
attorney fees, court costs and, in some cases, damages. They just do not learn.
Gay/Straight Alliance
Students have the right to start Gay/Straight Alliance clubs at their school. GSAs are treated like
all other extracurricular activities.
There have been numerous court cases filed against school districts when students were denied
the right to start a GSA. With one exception, the students won every case and the school was
required to permit the club. Some schools reacted by banning all non-scholastic activities but that
created problems with the other students. In the end, the schools, albeit reluctantly, acknowledged
the students’ right to form a GSA.
Protests
A 30-year old United States Supreme Court case, Tinker v. Des Moines, controls student speech
cases. The U.S. Supreme Court decided that students do not leave their 1st Amendment rights at
the schoolhouse door when they enter.
Schools can restrict a student’s freedom of speech only when it causes significant disruption in
the classroom. Schools continuously try to stretch what amounts to “significant disruption” and
usually lose. They cannot restrict a student’s right to wear a t-shirt if other students can wear
them. Someone saying they are offended or do not like the shirt is insufficient justification to
interfere with the student’s 1st Amendment rights.
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Privacy Rights
Some states, like Tennessee, are considering legislation that will allow teachers or school
administrators to tell a student’s parents that their son or daughter is LGBTQ. So far, none of the
proposed legislation has passed. However, a court challenge will swiftly follow and a student’s
right to privacy will prevent such laws from being enforced.
Harassment
Students have the right under Title IX and other laws to be free from harassment in school
Reporting all incidents to school administrators is imperative. Keeping track of what happens and
who is responsible is very important. And, not backing down is equally important. The
perpetrators are violating the student’s federal rights when engaging in harassing behavior.
When a student sues a school for harassment or bullying or creating a hostile environment, the
schools end up paying significant sums of money. The first case, involving Jamie Nabozny,
resulted in his former school districting ponying up close to $1 million dollars.
Problems remain because there are still many narrow-minded people operating in schools.
Conclusion
The issues facing LGBTQ students continues to evolve. Schools have a legal obligation to protect
students from harassment and bullying and to provide a safe environment. When they fail to do
so, there is a price to pay. Neither teachers nor students have the right to abuse other students
because they do not like or approve of their sexual orientation or gender identity.
Steps can be taken to protect LGBTQ students and those young people who are placed in state
custody.
Just because they are minors does not mean they have no rights. Enforcing those rights may be a
challenge.
The website for the American Civil Liberties Union has many resources available that address the
issues facing LGBTQ children and youth. These resources include model letters that students,
their parents, lawyers and other supporters can use to get the point across. And, the ACLU is
available to assist LGBTQ young people in enforcing their rights under the law.
Resources:
http://www.aclu.org/lgbt-rights/lgbt-youth-schools
http://www.aclu.org/lgbt-rights_hiv-aids/whats-your-problem
http://www.aclu.org/lgbt-rights_hiv-aids/library
http://www.aclu.org/lgbt-rights_hiv-aids/speaking-out-your-t-shirt
http://www.aclu.org/blog/lgbt-rights/victim-brutal-lgbt-bullying-ohio-school-tells-his-story
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http://www.youthresource.com/ A website by and for lgbtq young people
www.glsen.org
Presented by:
Joan M. Burda
Attorney at Law
216.832.8825
[email protected]
Twitter: @joanmburda
LinkedIn: linkedin.com/in/joanmburda
www.lgbtlaw.com
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