Education Law

Can I Sue My Child’s School for Gender or Sexual Orientation Harassment?

By E.A. Gjelten, Author and Editor
If other students are harassing your child for being gay or gender-nonconforming, you might be able to sue the school.

Any parent with a child who’s lesbian, gay, bisexual, transgender, or queer (LGBTQ) knows the challenges these kids face every day at school. A nationwide study showed that three-fourths of LGBTQ students said they dealt with verbal harassment based on their sexual orientation. For more than a third of them, the harassment was physical. Yet when they reported the problem to teachers or principals, nearly six in ten students said the school did nothing in response. If that was your child’s experience, you may be able to sue the school district and get compensation for the harm your child suffered. But it will depend on the circumstances, the evidence, and which laws apply.

Suing Schools Under Federal Law

A federal civil rights law known as Title IX says that any educational program receiving federal funds (all public schools and most private schools) shouldn’t discriminate “on the basis of sex.” Although the law doesn’t mention sexual orientation or transgender status, many courts have ruled that discrimination against someone for not conforming to gender stereotypes is illegal sex discrimination. Gay or trans kids are generally targeted because they don’t dress or act like most other students of their biological gender. And the bullying often includes forms of harassment that the law recognizes as being based on sex. For instance, if students push around and call a girl names because she has short hair and wears boys’ clothes, the harassment might be covered under Title IX if it was based on her gender nonconformity, not just her sexual orientation. (For more information, see our article on whether schools can discriminate against gay and transgender students.)

Also, some courts have found that there’s no real difference between straightforward sexual harassment—for instance, when boys make unwelcome sexual comments about female classmates because they see girls as sexual objects—and harassment based on a belief that someone is gay. As one judge explained, either way, the harassment is a response to a perception about the victim’s sexuality. (Ray v. Antioch Unified School Dist., 107 F.Supp.2d 1165 (N.D. Cal. 2000).)

The U.S. Supreme Court has set a high bar for successful Title IX lawsuits against schools for sex-based harassment by peers. The victim must show that:

  • school officials knew about the harassment but did so little about it that their response amounted to “deliberate indifference,” and
  • the harassment was so bad that it effectively deprived the victim of equal access to educational activities or programs.

(Davis v. Monroe County Board of Education, 526 U.S. 629 (1999).)

Suing Schools Under State Law

Some states have anti-bullying and/or anti-discrimination laws that protect students on the basis of sexual orientation, and a few of those laws include gender identity. However, that doesn’t necessarily mean that private citizens can sue schools based on violations of these laws. In certain circumstances, students who’ve been harmed as a result of harassment might be able to file a personal injury lawsuit against the school for negligence. (See our article on peer harassment for details.)

Fighting for Your Rights

It may not be easy to sue schools for harassment based on gender or sexual orientation, but some students have done just that—and won major victories. Derek Henkle, a Nevada teenager, was subjected to a campaign of harassment by other students after he came out on local TV. Teachers and administrators stood by (or even laughed) as classmates spit on, punched, threatened, kicked, and even lassoed Derek. He got legal help and sued the school district. After a court ruling allowed his lawsuit to go forward, Reno school officials agreed to pay him $450,000—and to make important policy changes to protect other gay students. And in a Missouri case, another teenager won a $75,000 settlement after he was harassed by other students who called him a “faggot” and threatened him.

Talking to a Lawyer

If other students have harassed your child based on gender or sexual orientation, you might consider speaking with a lawyer. An attorney experienced in education or civil rights law should be able to give you practical advice about reporting the problem to school officials and filing a formal claim. And if the school doesn’t respond to your complaints, a lawyer who has handled cases like yours should also be able to tell you whether you might have a case against the school district.

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