What are Your Rights?
The first thing you might wonder if you meet resistance in forming a gay-straight alliance or similar group at your school is:
Is it legal for my school or school board to stop our club from being created, or force our club to go by a different name (such as Diversity Club), or allocate fewer benefits (meeting spaces, advertising time, fundraising opportunities) to our club than other non-curricular clubs?
The answer is NO.
The United States’ judicial system has consistently upheld the rights of GSAs to form, to call themselves “Gay Straight Alliances” and to use the same meeting space, promotion opportunities, and fundraising venues as other non-curricular clubs (Mercier, 2009).
Legal Resources
If you are attempting to create a GSA at your school, and you are being prevented, or your existing GSA is being required to call itself something other than “Gay-Straight Alliance” (such as “Diversity Club”), or your club is not receiving the same access and opportunities as other clubs, contact the following legal organizations (click to be directed to their website) for assistance.
ACLU
Lambda Legal
The Law
There are two primary legal sources of support for GSA formation and GSA rights to equal treatment and access in terms of accommodations, advertising, and fundraising.
Equal Access Act of 1984 (20 U.S.C. §4071)
The first is the Equal Access Act (EAA), which specifically states that:
It shall be unlawful for any public secondary school which receives Federal financial assistance and which has a limited open forum to deny equal access or a fair opportunity to, or discriminate against, any students who wish to conduct a meeting within that limited open forum on the basis of the religious, political, philosophical, or other content of the speech at such meetings
The Right to Establish a GSA in Public Schools, 2021, p. 1
In fact, courts have often shown “disdain (Mercier, 2009, p. 184)” for school-based intolerance and discrimination against GSAs. In Cohen v. Orange Unified School District, the court ruling stated that ruling in favor of the school would make the court “complicit in the discrimination against students who want to raise awareness about homophobia and discuss how to deal with harassment directed toward gay youth (Mercier, 2009, p. 188).”
Schools have attempted to get around the EAA various ways – disabling all clubs; only allowing curricular clubs (often while allowing some non-curricular clubs to claim to be curricular); and twisting various elements of the EAA to their own purposes. However, the courts far more often than not have seen through those actions to the discriminatory motives that precipitate them (Mercier, 2009).
The EAA has a safe harbor provision, which allows a school to distinguish between certain student clubs or groups, and ban or restrict some, if needed, “to maintain order and discipline on school premises, to protect the wellbeing of students and faculty (The Right to Establish a GSA in Public Schools, 2021, p. 3).” While schools have attempted to invoke this provision in defense of banning or limiting GSAs, the courts have ruled in favor of the students in all but one (extremly unique) case (Sinclair & Reece, 2016).
The First Amendment
The second legal protection GSA clubs have comes from the First Amendment, which guarantees free speech. Some GSA legal positions have included both the EAA and the First Amendment protections in their arguments (GSA Court Victories, 2014).
Click here to view the ACLU List of GSA Court Victories until 2014 (GSA Court Victories, 2014)
Since the above list was published in 2014, several other pivotal cases have occurred:
- In December of 2016, in Carver Middle School Gay-Straight Alliance v. School Board of Lake County, a panel of Federal judges ruled that middle schools which provide any courses earning high school credit are covered under the EAA, and thus can not prevent or restrict GSAs (Volokh, 2016).
- In January of 2019, the ACLU of Indiana, representing the Leo Pride Alliance, reached a settlement with East Allen County Schools, in which the Leo Pride Alliance would be allowed to change its name to LEO GSA (Gay Straight Alliance), and would receive the same opportunities for meeting spaces, school-wide communication, and fundraising as other clubs (Case Closed, 2019).
- In December 2021, a judge issued a preliminary injunction mandating that Pendleton Heights High School give its gay-straight alliance group the same access and rights afforded to the other school clubs while the case progresses (Allen, 2021).
Bostock v. Clayton County, 590 U.S. ___ (2020)
Extremely important to the future of GSA court cases (and all cases concerning LGBTQ+ rights in the United States) was the Supreme Court ruling on Bostock v. Clayton County. In this 6-3 decision, Justice Neil Gorsuch wrote in the majority opinion that discrimination based on sexual or gender identity is a violation of Federal Title VII protections against discrimination based on sex (Bostock v. Clayton County, n.d.).
This case opens the door for all gender- and sexual-identity-based discrimination to be considered discrimination on the basis of sex in all cases involving the Federal government.
More Information
Do you want more information? Check out these resources for further details on your right to establish a GSA
GLAD: The Right to Establish a GSA in Public Schools (2021)
Lambda Legal on Establishing a GSA (Gay-Straight Alliances, n.d.)
Policy and Protection Maps of State Laws Related to Various LGBTQ+ Protections. (Policy Maps, 2021)
References
Allen, J. (2021, December 22). Pendelton Heights gay-straight alliance club granted equal rights after judge’s injunction. Indianapolis Star. https://www.indystar.com/story/news/2021/12/22/pendleton-heights-lawsuit-gay-straight-alliance-club-granted-injunction/9002294002/
Case closed: Leo Pride GSA to receive equal treatment. (2019, January 24). ACLU of Indiana. https://www.aclu-in.org/en/news/case-closed-leo-pride-gsa-receive-equal-treatment
Gay-Straight Alliances. (n.d.). Lambda Legal. https://www.lambdalegal.org/know-your-rights/article/youth-gay-straight-alliances
GSA court victories: A guide for LGBTQ high school students. (2014, November 24). ACLU. https://www.aclu.org/sites/default/files/assets/gsa_victories_handout_11.24.14.pdf
Mercier, M. T. (2009). Fighting to fit in: Gay-straight alliances in schools under United States jurisprudence. The International Journal of Human Rights, 13(2-3):177-191. doi:10.1080/13642980902758101
Policy maps. (2021). GLSEN. https://www.glsen.org/policy-maps
Sinclair J., & Reece, B. J. (2016). Gay-straight alliances in the battle for rights: A tipping point for progress over prohibition. Interchange, 47:109-120. doi:10.1007/s10780-015-9257-3
The right to establish a GSA in public schools: A basic primer. (2021, January). GLAD.org. https://www.glad.org/wp-content/uploads/2021/02/GSA-Public-Schools.pdf
Volokh, E. (2016, December 7). Algebra class means junior high school must allow gay-straight alliance. reason. https://reason.com/volokh/2016/12/06/algebra-class-means-junior-hig/
Guide to Creating Safe and Welcoming Schools 