A Backlash of Anti-LGBTQ Legislation
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Author(s): Carolyn Stone, Ed.D.
May 1, 2021
Scenario: Cheresa came to you about a hostile environment in which one of her teachers goes out of his way to call her Samuel, the name assigned to her at birth, and overemphasizes the male pronouns when referring to her. You listen, support and seek her input as to how she wants to proceed. You weigh the pros and cons of going straight to administration vs. honoring her request to just talk to her teacher. You decide to talk to her teacher, who reacts to your conversation by calling Cheresa’s parents to say, “The school counselor is encouraging Samuel to be a girl and leaving you in the dark about it.” This results in complaints from the mother to the district, the press and to legislators, who are introducing bills to prohibit educators from withholding information from parents when they learn a child is questioning the gender assigned at birth.
This real scenario is being repeated in a number of states with legislation such as Alabama’s HB 1/SB 10: No nurse, counselor, teacher, principal or other administrative official at a public or private school attended by a minor shall do either of the following:
As of April 2021, HB1/SB10 was one of 82 anti-transgender bills introduced in 2021 state legislative sessions around the country, representing the most in a single year, for a total of 155 anti-transgender bills in less than two years. The Human Rights Campaign has been tracking anti-transgender legislation across states for years and described this fast and furious filing as the result of legislators trying to score political points and beat President Biden’s executive order calling on the federal government to use the decision in Bostock v. Clayton County as legal muscle to prohibit discrimination based on sexual orientation and gender identity. Although the Bostock case involved adults in the workplace, it’s proving to be an important case for transgender youth as well, with the court ruling discrimination against a transgender individual is, in fact, sex discrimination as prohibited by Title IX and Title VII.
Mixed messages are coming from the federal and state level. On the national level, the U.S. House of Representatives just passed the Equality Act with bipartisan support; it currently awaits passage in the Senate. In declaring Bostock to be the federal government’s North Star, Biden said, “Children should be able to learn without worrying about whether they will be denied access to the restroom, locker room or school sports.” On March 8, 2021, Biden signed an executive order focused on examining – and most likely rolling back – many of the previous administration’s policies regarding discrimination. He said, “It is the policy of my administration that all students should be guaranteed an educational environment free from discrimination on the basis of sex, including discrimination in the form of sexual harassment, which encompasses sexual violence, and including discrimination on the basis of sexual orientation or gender identity. For students attending schools and other educational institutions that receive federal financial assistance, this guarantee is codified, in part, in Title IX of the Education Amendments of 1972, 20 U.S.C. 1681 et seq., which prohibits discrimination on the basis of sex in education programs or activities receiving federal financial assistance. Within 100 days of the date of this order, the secretary of education, in consultation with the attorney general, shall review all existing regulations, orders, guidance documents, policies and any other similar agency actions.”
States are rushing to contradict Biden’s executive order by implementing anti-transgender legislation not only to ban participation in sports and withhold medical gender-affirming care but also to require a breach of confidentiality should educators learn a minor’s “perception that his or her gender or sex is inconsistent with his or her sex, questioning or is transgender.”
All the bills that fail to affirm students’ gender identity and increase these vulnerable students’ risk are concerning, but none directly hit school counselors’ role more than the bills changing the relationship between school counselor and student. This proposed legislation does grievous harm to the trusting relationship between school counselors and students by requiring school counselors to “out” students to their parents.
School counselors know students should be allowed to determine when, where and to whom they come out. The law supersedes ethics; when these laws are passed, school counselors are legally obligated to adhere to them. However, these laws ask us to possibly do grievous harm. Amanda Keller, who works with LGBTQ youth in Alabama, states of the Alabama bill, “All students deserve to be affirmed as their full, authentic selves without fear of violence from educators and administration. Outing students is an act of violence that compromises the health and futures of LGBTQ youth.”
The Parents’ Bill of Rights in Florida has notification requirements that professionals fear will out children as gay or transgender before they’ve chosen to come out to their parents. South Carolina House Bill H. 4047 bans medical care but also states, “nurses, counselors, teachers, principals or other school administrative officials” cannot withhold information from parents about a transgender or questioning status. “Legislators clearly do not understand the potentially dangerous position in which they are putting transgender youth,” said Chase Glenn, executive director of the Alliance for Full Acceptance, in a recent article in The State. “By requiring school personnel to notify parents when a youth discloses their gender identity, they are opening the door for possible violence and harm if that parent is not understanding or supportive.”
School counselors know that our LGBTQ community represent some of our most vulnerable youth, as underscored by the Centers for Disease Control and Prevention’s 2019 Youth Risk Behavior Survey. The survey revealed that cisgender youth considered suicide in the previous 12 months at a rate of 16.3% compared with a stunning 43.9% for transgender youth. In the 2015 U.S. Transgender Survey of more than 40,000 transgender adults ages 18 and above, more than 77% of those who were out or perceived as transgender while in grades K–12 reported negative experiences, with more than half (54%) reporting verbal harassment and one-quarter (24%) reporting physical assault.
Not all LGBTQ children have supportive homes. The fear is, in some states, school counselors can no longer be the safe haven to listen to and support students without outing them to their parents. Students are in the best position to predict their parents’ reaction and to gauge when they are ready to broach the subject with their parents. It isn’t the school counselor’s role to out students but to listen, support and provide unconditional positive regard.
What do you do when your state joins the groundswell of anti-transgender bills? ASCA can provide help. ASCA works closely with state school counselor associations to oppose harmful legislation that would negatively affect students. Upon request, ASCA can help states navigate the state legislative process, identify organizational and political allies, draft testimony, publish online action alert or advocacy campaigns and help states develop a strategy to be an organized voice for the profession.
State school counselor associations have a powerful voice; leaders and lobbyists can take this recently passed model document from Virginia (bit.ly/3ekq70E) and start needed conversations about how educators can support transgender youth.
To see what your state is doing, visit the ACLU website at www.aclu.org/legislation-affecting-lgbt-rights-across-country.
Carolyn Stone, Ed.D., is a professor at the University of North Florida and the chair of ASCA’s Ethics Committee. Send your ethical questions to ethics@schoolcounselor.org.
This real scenario is being repeated in a number of states with legislation such as Alabama’s HB 1/SB 10: No nurse, counselor, teacher, principal or other administrative official at a public or private school attended by a minor shall do either of the following:
- Encourage or coerce a minor to withhold from the minor’s parent or legal guardian the fact that the minor’s perception of his or her gender or sex is inconsistent with the minor’s sex.
- Withhold from a minor’s parent or legal guardian information related to a minor’s perception that his or her gender or sex is inconsistent with his or her sex.
It isn’t the school counselor’s role to out students but to listen, support and provide unconditional positive regard.
As of April 2021, HB1/SB10 was one of 82 anti-transgender bills introduced in 2021 state legislative sessions around the country, representing the most in a single year, for a total of 155 anti-transgender bills in less than two years. The Human Rights Campaign has been tracking anti-transgender legislation across states for years and described this fast and furious filing as the result of legislators trying to score political points and beat President Biden’s executive order calling on the federal government to use the decision in Bostock v. Clayton County as legal muscle to prohibit discrimination based on sexual orientation and gender identity. Although the Bostock case involved adults in the workplace, it’s proving to be an important case for transgender youth as well, with the court ruling discrimination against a transgender individual is, in fact, sex discrimination as prohibited by Title IX and Title VII.
Mixed messages are coming from the federal and state level. On the national level, the U.S. House of Representatives just passed the Equality Act with bipartisan support; it currently awaits passage in the Senate. In declaring Bostock to be the federal government’s North Star, Biden said, “Children should be able to learn without worrying about whether they will be denied access to the restroom, locker room or school sports.” On March 8, 2021, Biden signed an executive order focused on examining – and most likely rolling back – many of the previous administration’s policies regarding discrimination. He said, “It is the policy of my administration that all students should be guaranteed an educational environment free from discrimination on the basis of sex, including discrimination in the form of sexual harassment, which encompasses sexual violence, and including discrimination on the basis of sexual orientation or gender identity. For students attending schools and other educational institutions that receive federal financial assistance, this guarantee is codified, in part, in Title IX of the Education Amendments of 1972, 20 U.S.C. 1681 et seq., which prohibits discrimination on the basis of sex in education programs or activities receiving federal financial assistance. Within 100 days of the date of this order, the secretary of education, in consultation with the attorney general, shall review all existing regulations, orders, guidance documents, policies and any other similar agency actions.”
States are rushing to contradict Biden’s executive order by implementing anti-transgender legislation not only to ban participation in sports and withhold medical gender-affirming care but also to require a breach of confidentiality should educators learn a minor’s “perception that his or her gender or sex is inconsistent with his or her sex, questioning or is transgender.”
All the bills that fail to affirm students’ gender identity and increase these vulnerable students’ risk are concerning, but none directly hit school counselors’ role more than the bills changing the relationship between school counselor and student. This proposed legislation does grievous harm to the trusting relationship between school counselors and students by requiring school counselors to “out” students to their parents.
School counselors know students should be allowed to determine when, where and to whom they come out. The law supersedes ethics; when these laws are passed, school counselors are legally obligated to adhere to them. However, these laws ask us to possibly do grievous harm. Amanda Keller, who works with LGBTQ youth in Alabama, states of the Alabama bill, “All students deserve to be affirmed as their full, authentic selves without fear of violence from educators and administration. Outing students is an act of violence that compromises the health and futures of LGBTQ youth.”
The Parents’ Bill of Rights in Florida has notification requirements that professionals fear will out children as gay or transgender before they’ve chosen to come out to their parents. South Carolina House Bill H. 4047 bans medical care but also states, “nurses, counselors, teachers, principals or other school administrative officials” cannot withhold information from parents about a transgender or questioning status. “Legislators clearly do not understand the potentially dangerous position in which they are putting transgender youth,” said Chase Glenn, executive director of the Alliance for Full Acceptance, in a recent article in The State. “By requiring school personnel to notify parents when a youth discloses their gender identity, they are opening the door for possible violence and harm if that parent is not understanding or supportive.”
School counselors know that our LGBTQ community represent some of our most vulnerable youth, as underscored by the Centers for Disease Control and Prevention’s 2019 Youth Risk Behavior Survey. The survey revealed that cisgender youth considered suicide in the previous 12 months at a rate of 16.3% compared with a stunning 43.9% for transgender youth. In the 2015 U.S. Transgender Survey of more than 40,000 transgender adults ages 18 and above, more than 77% of those who were out or perceived as transgender while in grades K–12 reported negative experiences, with more than half (54%) reporting verbal harassment and one-quarter (24%) reporting physical assault.
Not all LGBTQ children have supportive homes. The fear is, in some states, school counselors can no longer be the safe haven to listen to and support students without outing them to their parents. Students are in the best position to predict their parents’ reaction and to gauge when they are ready to broach the subject with their parents. It isn’t the school counselor’s role to out students but to listen, support and provide unconditional positive regard.
What do you do when your state joins the groundswell of anti-transgender bills? ASCA can provide help. ASCA works closely with state school counselor associations to oppose harmful legislation that would negatively affect students. Upon request, ASCA can help states navigate the state legislative process, identify organizational and political allies, draft testimony, publish online action alert or advocacy campaigns and help states develop a strategy to be an organized voice for the profession.
State school counselor associations have a powerful voice; leaders and lobbyists can take this recently passed model document from Virginia (bit.ly/3ekq70E) and start needed conversations about how educators can support transgender youth.
To see what your state is doing, visit the ACLU website at www.aclu.org/legislation-affecting-lgbt-rights-across-country.
Carolyn Stone, Ed.D., is a professor at the University of North Florida and the chair of ASCA’s Ethics Committee. Send your ethical questions to ethics@schoolcounselor.org.