Beyond RFRA: Rethinking LGBT Children’s Rights and Parents Rights in Schools

In the year since the Obergefell decision was handed down by the Supreme Court, conservative legislators and lobbying groups have introduced an unprecedented wave of state legislation to curtail and contain LGBT rights nationally. The recognition of legal rights for LGBT people have led opponents of those rights to expand their rhetoric beyond the assertion that same-sex attraction and transgender status is immoral, unhealthy, or dangerous, and has given rise to a host of claims that LGBT rights infringe on the rights of those who would prefer not to recognize and respect them.

A number of the bills introduced in the post-Obergefell era have been framed in the rhetoric of “religious liberty,” and purport to preserve the First Amendment rights of conscientious objectors whose positions might otherwise compel them to recognize or serve LGBT people. A number of high profile cases have worked their way through state and federal courts, and these cases – along with the Supreme Court’s forthcoming decision in Little Sisters of the Poor v. Burwell, a case involving religious objections to the contraceptive mandate of the Affordable Care Act – are beginning to clarify the contours of religious liberty jurisprudence where it clashes with LGBT rights.

Yet religious liberty is not the only place where conservative forces are seeking to use the rhetoric of rights to constrain LGBT equality in the post-Obergefell era. In addition to bills seeking to restrict access to restrooms, locker rooms, and sports teams for transgender students, conservatives are increasingly arguing at the school district level for an interpretation of federal and state law that requires parental permission for students to be taught LGBT-inclusive curricula, including sex education, to use their preferred names and pronouns, and to access facilities consonant with their gender identity. In a number of school districts, conservatives have quietly passed policies that make the basic rights of LGBT students contingent on written permission from parents – a requirement that many LGBT students are unable to meet without jeopardizing their safety and well-being.

In this paper, I explore the validity of the parental rights argument as a limitation on LGBT children’s rights claims. First, I trace the genealogy of sex panics around LGBT youth in schools, ranging from Anita Bryant’s “Save the Children” campaign and prohibitions on LGBT teachers to the legal fights over the formation of gay-straight alliances in the 1990s to the ongoing debates about restrictions on discussing homosexuality in schools. Second, I review the literature on micro aggressions and discuss the reasons why – even after many other legal battles pertaining to LGBT youth have been fought and won – routine misgendering, stigmatization, and exclusion in schools remain profoundly detrimental to the dignity, privacy, health, and safety of LGBT youth. Third, I consider the ways that parental rights have been mobilized alongside religious rights as a new frame of opposition to LGBT rights in the post-Obergefell era, focusing specifically on case studies from Oregon, Michigan, and Pennsylvania to illustrate the claims that are being advanced and enshrined in public policy. Incorporating arguments advanced by conservative legal organizations seeking to stymie transgender rights in particular, I finally evaluate the validity of claims that HIPPA, FERPA, and other federal laws pertaining to youth in schools require educators to defer to parents in the instruction and affirmation of LGBT youth.

Ultimately, the paper delineates what schools may need to do to comply with their legal obligations under state and federal law, but rejects the broad assertion of parental rights being advanced in school districts across the country. It identifies a sound legal basis for schools to acknowledge and respect the identities and rights of LGBT youth, and particularly transgender and gender non-conforming youth. It also urges LGBT advocates not to shy from an aggressive defense of LGBT youth in the post-Obergefell agenda, identifying safe and inclusive school environments as a crucial battleground for those invested in a substantive, intersectional approach to justice that looks beyond formal equality.


Part of panel Queer Youth and Education
October 1, 2016, 16:45–18:30