Testimony of Johanna Miller and Robert Hodgson before The New York City Council Committee on Education regarding the treatment of LGBTQ students, family and staff in the NYC public school system. [1]

February 25, 2014

The New York Civil Liberties Union respectfully submits the following testimony regarding the treatment of LGBTQ students, family, and staff in the NYC public school system. We would like to thank the Committee on Education and Councilmember Dromm for giving the NYCLU the opportunity to provide testimony today regarding ensuring that the rights of all students are respected and protected in New York City public schools.

The NYCLU, the New York state affiliate of the American Civil Liberties Union, is a not-for-profit, non-partisan organization with eight offices across the state and nearly 50,000 members and supporters statewide. The NYCLU’s mission is to defend and promote the fundamental principles, rights, and constitutional values embodied in the Bill of Rights of the U.S. Constitution and the Constitution of the State of New York.

As part of the NYCLU’s longstanding commitment to protect the right to a quality education for all of New York’s children, we have spent over a decade advocating for schools to prevent and address bias-based discrimination against, and harassment of, LGBTQ students. Our work has included legislative campaigns in support of the statewide Dignity for All Students Act (“DASA”) and its local counterparts (“Local Law 42” and NYC DOE’s “Respect for All” program), advocacy on behalf of individual targets of bias-based harassment and discrimination, and ongoing participation on the State Education Department’s Dignity Implementation Task Force. In addition, our work to improve school discipline and restrict the role of the criminal justice system in schools affords us a unique perspective on how the criminalization of student behaviors disproportionally affects LGBTQ students.

The NYCLU regularly receives calls from parents, students, and teachers about the rights of LGBTQ students in school, including those who are subjected to such severe harassment that attending school each day is a challenge. In our communication with educators and school staff, it has become increasingly clear that schools need and want more guidance on how to enforce New York State laws and City ordinances that protect LGBTQ youth, particularly transgender and gender non-conforming students. Combating discrimination and harassment in NYC schools requires an organized and comprehensive strategy—not only when bias incidents involve young people or occur on school grounds, but wherever schools have the opportunity to instill the values of diversity and respect in the next generation of New Yorkers[i]. In the experience of the NYCLU, however, based on intakes and work with the students who make up our Teen Activist Project (“TAP”), New York City schools are implementing DASA and Respect for All piecemeal, if at all.

Today our remarks will focus on the work that still needs to be done to lay the groundwork in schools for the creation of a safe and welcoming space for LGBTQ students.

I. LGBTQ youth, an already vulnerable population, regularly face discrimination and harassment in school.

National research shows that anti-LGBTQ harassment in schools is widespread and persistent. More than 84% of LGBTQ youth report hearing “that’s so gay” used in a negative way at school, 81% report being verbally harassed and 60% said they did not report an incident of harassment because they believed no action would be taken by school staff.[ii] Among the most vulnerable members of our community, LGBTQ youth are at increased risk for dropping out of school, and are more likely to attempt suicide in their lifetime than their peers.[iii] In addition, LGBTQ students are among the populations of students that experience a disproportionately high number of severe disciplinary actions (from suspensions to criminal sanctions) at the hands of school authorities—indeed, these students are 40% more likely than other teens to receive punishment at school, and 50% more likely to be stopped by the police.[iv] Clearly, ingrained prejudice and discrimination exists even among the adults whose job it is to protect students from discrimination.

We commend the DOE for taking important steps to address bullying, including taking on a leadership role on the State Dignity Implementation Task Force, and for working with recognized leaders in the field to provide training for educators. Yet it is still failing to meet all its obligations under Local Law 42 and DASA. As a result, far too few students understand the implications of DASA for their lives, their rights under the law, and whom they should go to for help if they feel marginalized in school. For example, in a recent survey conducted by members of the NYCLU’s Teen Activist Project, we found only nine percent of NYC students surveyed were able to correctly identify their Respect for All/ DASA Coordinator.[v] In order to ensure LGBTQ youth stay in school and feel supported by educators and peers, the NYCLU offers the following recommendations:

1. Implement Clearly Articulated Policies Protecting the Rights of Transgender and Gender Non-Conforming Students

Transgender and gender non-conforming youth experience overwhelming amounts of harassment and discrimination in schools throughout New York City and across the country. We use those terms to refer to students whose gender identity differs from the gender assigned to them at birth or whose gender expression does not conform to societal expectations for their assigned gender. The 2011 National School Climate Survey conducted by the Gay, Lesbian and Straight Education Network (GLSEN) [vi] found that 64% of transgender students had been verbally harassed in the past year because of their gender expression, more than a quarter had been physically harassed or assaulted, and more than 60% of students who were victimized did not report the events to school authorities. These traumatic experiences have demonstrably negative effects on students: more than half (53%) skipped school at least once in the past month because they felt unsafe or uncomfortable, their GPAs dropped precipitously, and, as noted in multiple studies, many became at-risk for developing depression and suicidal tendencies. The evidence is overwhelming that transgender and gender non-conforming youth need active school support and protection for their physical, mental, and educational well being.

New York and federal law (DASA, Local Law 42, and federal Title IX, 20 U.S.C. § 1681) require schools to treat transgender students equally and fairly. This means that all programs, activities, and education practices must be conducted free from discrimination based on actual or perceived gender identity, gender expression, or gender. DASA further provides that public schools have an affirmative obligation to combat students’ experience of a “hostile environment” in school, and a responsibility to provide equal educational opportunities to all pupils.
In practice, these laws require that schools accept and affirm a transgender or gender non-conforming student’s preferred pronoun and name; update school records to reflect the student’s name and gender identity; work directly with the student (and, if appropriate, the student’s family) to ensure that the student’s needs are being met; and provide access to facilities (including bathrooms and locker rooms) that correspond to the student’s gender identity.

A student who is transitioning socially, or who has recently shared their gender identity with others, must be supported by their school, and school personnel must act affirmatively to ease the transition at school and ensure that harassment and discrimination are avoided by students and staff alike. In addition, schools must protect the privacy of transgender and gender non-conforming students; school authorities must not “out” a student to teachers, peers, or parents without permission, and must be sensitive to the student’s right to disclose (or not disclose) their gender identity according to the student’s own timeline.

Despite the fact that DASA, Local Law 42, and federal Title IX all require schools to implement the measures outlined above, many school administrators and staff remain largely in the dark about their responsibilities, leading to widespread, and avoidable, violations of students’ rights. Only recently, an allied organization made us aware of a middle school student at a New York City public school who was regularly harassed for presenting a gender non-conforming appearance. The school failed to effectively address the harassment, and indeed exacerbated it by unnecessarily and excessively segregating mundane activities—like standing in line—by gender. The student felt compelled to transfer schools.

2. Improve Training

In addition to written policies clearly enumerating the rights of transgender and gender non-conforming students, and best practices for protecting those rights, New York City schools must ensure that these and related policies are implemented effectively, with improved trainings for all school personnel and students. Both City and State DASA require intensive training of adults who work in schools, curricula that promotes tolerance among students of all ages, and clear pathways for the reporting, investigation, and resolution of student complaints of bullying and harassment. Both laws require the identification of a coordinator in each school who has received intensive training and who will ensure that the laws are implemented correctly (known as the “Respect for All” or “Dignity Act Coordinator”).

For DASA to reach its full potential in practice, all adults who work in school buildings must receive some training on LGBTQ history, challenges for LGBTQ youth, and how to respond to harassment in a supportive way. Non-teaching staff, such as cafeteria workers, bus drivers, and custodians need support to recognize and respond to harassment, and to challenge their own personal biases when working with children. School Safety Officers (SSOs) must receive training on these issues as well—currently their pre-service training includes no specific lessons on working with LGBTQ young people or meeting their specific needs. As uniformed members of the NYPD, SSO’s ability to model respect and cultural sensitivity is a vital opportunity to teach these behaviors to young people.

Professional staff such as teachers, principals, and counselors must have more intensive training, allowing them to advise LGBTQ students, to talk comfortably about LGBTQ issues in class, and to address larger cultural themes of intolerance, violence and discrimination through lesson plans. Educators should be trained on the importance of inclusive classroom conversations, prompt responses to biased based harassment, and community resources available for LGBTQ students.

3. Integrate LGBTQ-Positive Curricula in Schools

The Gay Lesbian and Straight Education Network’s (GLSEN) National School Climate Survey found that inclusive curricula contribute to a safer school environment for LGBTQ students, helping them feel more connected to school and reinforcing peer acceptance of LGBTQ students. National research also confirms that the overwhelming majority, more than 86%, of students are not learning about LGBTQ history, events or people in their classes.[vii]

From the NYCLU’s work with high school students, both through our youth program—the Teen Activist Project—and presenting workshops in NYC public schools, we have learned firsthand that students often receive little educational information about the LGBTQ community in schools. When gender and sexual orientation are discussed in classes, it is too often in a way that stigmatizes LGBTQ people and further marginalizes students. Given the diversity of our city and our schools, these students are undoubtedly left with more questions than answers about the experiences of LGBTQ New Yorkers. If we want to create a city free from homophobia and transphobia, we have to teach our youngest generation to be allies.

Organizations like GLSEN and Teaching Tolerance have created free lesson plans for educators on the topics of diversity, respect and LGBTQ history to support school districts that want model curricula to draw from.[viii] Additionally, curricula used in NYC schools to promote positive responses to diversity should include information on hate or bias crimes[ix] along with information about community-based organizations, youth friendly and LGBTQ affirming mental health care options, and support services available for victims of bias based violence.

4. Respond Appropriately to Bias Based Bullying

The NYCLU recommends that disciplinary responses to bias-based incidents in school should address the root causes of discriminatory incidents. All too often, zero-tolerance policies mean student misbehavior is met with exclusionary discipline, with little to no time dedicated to working with the student to help them understand the situation at hand. Discipline should help students learn how to correct their behavior, and understand the impact of their actions on others, in order to create safer classrooms that are better for learning. Educators need training on how to best handle disciplinary issues, in ways that improve the school climate while supporting the school’s vulnerable youth. National research has demonstrated that bullied students felt safest when a teacher listened to their complaint and checked back in later; far fewer students reported feeling safer when their bully was suspended from school.[x] Particularly in light of the disproportionate impact that severe disciplinary actions have on LGBTQ students, students with disabilities, and students of color and,[xi] the NYCLU strongly opposes anti-discrimination policies and trainings that emphasize increased punishment and criminal sanctions as the remedy for bias-based harassment.

5. Collect Reliable Data and Use it to Target Solutions

Both DASA and Local Law 42 require a data collection and reporting component. Working with the New York State Education Department, the NYCLU has received preliminary data from the first year of DASA-related reporting. New York City schools are almost certainly underreporting, which demonstrates confusion about the purpose and meaning of collecting the data, how it will be used, and how to capture and record incidents. In addition, New York is reporting nearly three times as many gender-based incidents of harassment as the rest of the state combined (3,176 versus 1,106), despite the fact that there are over half a million fewer students enrolled here. It appears that these figures include incidents of harassment based on gender expression and gender stereotyping, and there is no question that they bespeak a need for additional information and investigation, but they may also indicate inaccurate reporting, and a lack of understanding of the meaning of each of the categories.

While public reporting of individual incidents in school would be inappropriate, access to reliable aggregate data allows the DOE, the Council, and advocates to identify areas in need of support—for example, patterns of targeting LGBTQ students, boroughs or local districts where bullying is rampant, or areas where data indicates that schools are doing an above-average job of reducing incidents. We encourage the DOE to improve the way that data is collected, analyzed, and actually used in real time by schools to strengthen their programs and safeguard vulnerable students. We are also continuing to work with NYSED to improve, clarify, and simplify reporting requirements and training.

6. Disable Web Filters that Block LGBTQ Content

The NYCLU has received complaints from students and teachers that the internet-filtering software used in New York City public schools—a “Websense” product with default filter settings determined by the DOE— may block access to websites that advocate for the fair treatment of LGBTQ individuals or websites that reflect the viewpoints of LGBTQ people. Our understanding is that the filter permits access to websites with anti-LGBTQ viewpoints and that the filter is unrelated to sexual content. If true, these reports indicate a serious First Amendment violation, and a contributing factor to students’ experience of hostility and discrimination at school. We will be following up with the DOE about its use of the filter.

7. Conclusion

Committee Chairperson Dromm, and the entire Committee on Education, we thank you for your attention to this important issue. New York’s constitution guarantees education to every young person in the state, and improving school climate for all students will help to ensure that we are teaching tolerance, proactively addressing anti-LGBTQ violence, and identifying schools as safe havens for LGBTQ youth. We hope the Council will take an active role in establishing clear protections for transgender and gender non-conforming students, making more detailed data about bias motivated crimes accessible to the public, and countering stereotypes and discrimination in New York City public schools.


1. With contributions by Lauren Frederico and Brooke Menschel.

i. Anti-Defamation League, “How to Combat Bias and Hate Crimes, an ADL Blueprint For Action” 2003 http://www.adl.org/assets/pdf/combating-hate/blueprint.pdf

ii. GLSEN, “The 2011 National School Climate Survey. The Experiences of Lesbian, Gay, Bisexual and Transgender Youth in Our Nation’s Schools” Available at http://glsen.org/sites/default/files/2011%20National%20School%20Climate%.... Last Accessed 24 February 2014.

iii. Richard T. Liu, Brian Mustanski. “Suicidal Ideation and Self-Harm in Lesbian, Gay, Bisexual, and Transgender Youth” American Journal of Preventative Medicine – March 2012 (Vol 42, Issue 3), Pages 221-228. Available at http://www.ajpmonline.org/article/S0749-3797%2811%2900917-2/abstract. Last Accessed 24 February 2014.

iv. Himmelstein, Kathryn and Bruckner, Hannah, “Criminal-Justice and School Sanctions Against Nonheterosexual Youth: A National Longitudinal Studey,” Pediatrics, December 6, 2010. Available at http://pediatrics.aappublications.org/content/early/2010/12/06/peds.2009.... Last Accessed 24 February 2014.

v. TAP members distributed and collected 370 surveys of their peers. The surveys were distributed before the beginning of classes ranging from 9th-12th grade, and they were completed anonymously. Only 9 percent of students surveyed were able to name their Dignity Coordinator.

vi. See supra note i.

vii. See supra note i, at 60.

viii. See GLSEN http://glsen.org/educate/resources/curriculum and Teaching Tolerance http://www.tolerance.org/classroom-resources Last Accessed 24 February 2014.

ix. US Department of Education, “Archived Information. Protecting Students from Harassment and hate Crime: A Guide for Schools- January 1999” Available at http://www2.ed.gov/offices/OCR/archives/Harassment/address1.html Last Accessed 24 February 2014.

x. Stan Davis, Youth Voice Project: Student Insights on Bullying and Peer Mistreatment, Research Press Publishers, 2013.

xi. See supra note iii; see also United States Department of Justice, “Dear Colleague Letter on the Nondiscriminatory Administration of School Disclipline,” January 8, 2014, at 3-5 (highlighting the fact that certain minority racial and ethnic groups tend to be disciplined more severely than their peers). Available at https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201401-titl.... Last accessed on 24 February 2014.