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Law protecting gay students lacks enforcement mechanism

Councilman Jimmy Van Bramer holds a rainbow flag at the 2012 Queens Pride Parade in Jackson Heights. Photo by Elisabeth Ponsot.

For years, Sade Singh, a Brooklyn-born, self-proclaimed “activist” teenager who lives in Hollis, Queens, watched from afar as individuals around her who identified as gay, lesbian and transgender were harassed — by overt displays of bigotry in her community and occasional incidents of intolerance at her school, Queens Collegiate High School in Jamaica.

“I know for a fact that if you are a gay male, you are not safe in my neighborhood. You will be targeted and you will be picked on,” she said.

She recalled one incident in 2011, when she overheard several people at a corner bodega threaten a group of transgender women who had moved into her Southeast Queens neighborhood. Later on, one of the women was badly beaten.

“It wasn’t reported,” she said. “It’s not on the news unless someone is killed.”

The road to Dignity

Harassment against gay, lesbian and transgender individuals has received considerable media coverage over the past few years, as a wave of suicides — including the death of 18-year-old Tyler Clementi, a student at Rutgers University who jumped off the George Washington Bridge in 2010 — called into question what protective policies, if any, might stave off tragic outcomes.

Nowhere are these preventative measures more critical, activists argue, than in the classrooms, hallways and schoolyards where students spend around 1,000 hours each year.

In 2009, more than 7 million U.S. students ages 12-18 were bullied at school and more than 1.5 million students were subject to cyber bullying, according to the National Center for Education Statistics.

“In nearly every school, millions of students, gay and straight, suffer in isolation as victims of anti-[gay, lesbian, bisexual, transgender] bullying. Millions of other students wield anti-GLBT epithets without any understanding of their meaning or knowledge of their impact,” said a National Education Association report from the same year. “Nearly a quarter of [GLBT] students were physically assaulted—punched, kicked, or injured with a weapon—because of their sexual orientation.”

In response to these troubling trends, pioneering policymakers and school administrators grapple with a range of questions for which solid answers, to this day, remain elusive:

How do we address the unique struggle of gay, lesbian, bisexual and transgender youth in schools without alienating or further stigmatizing these students?

How do we respond to parents who worry their children are too young to talk about sexual orientation?

How do we develop new programs to combat harassment as school budgets continue to deplete?

How do we deal with pushback from community members who believe these conversations don’t belong in classrooms?

The state of New York’s response, the Dignity for All Students Act (DASA), became law on July 1. This act goes further than any in the state’s history to specifically spell out what constitutes a “safe and supportive” learning environment.

The law deems students have the right to attend school free from bullying and harassment on the basis of an individual’s actual or perceived sexual orientation or gender identity.

The rights detailed in the Dignity act do not extend to the nearly 400,000 children who attend private schools across the state.

Peter DeWitt, an elementary school principal in Averill Park and author of the book “Dignity for All,” said in an interview that despite budget cuts to education, “I always think, ‘this is kind of a no-brainer.’ Is it really that hard to make sure everyone is safe in school?”

Bryan Fischer of the American Family Association, an evangelical advocacy group, disagreed. “The title of the very act is a lie,” he said. “I think the more accurate name for this bill is the ‘Dignity for all students — except Bible-believing Christians act.’”

Fischer, whose Mississippi-based organization is fighting anti-bullying measures across the country, said the law should include a caveat exempting “any student who has a sincerely-held religious belief that homosexuality is sinful behavior.”

For DeWitt, pushback against the Dignity act is disappointing, but not unexpected.

“There will be people who have never been exposed to the issue so they are afraid to talk about it. There will be others who are trying, but don’t know what to do, and there will be people who say, ‘I don’t want to talk about this,’ because they are bigoted,” he said.

“’Don’t ask don’t tell’ may have ended in the military. But it’s still happening in schools,” reports DeWitt.

Student activism in NYC

In 1997 — 13 years before the Dignity for All Students Act was first signed into law in 2010 — the New York Civil Liberties Union (NYCLU) began the Teen Activist Project, or TAP. Since then, nearly two dozen New York City high school students meet weekly in Lower Manhattan to debate civil liberties, social justice issues and youth activism.

This year’s group “wanted to do something to make all New York students — regardless of sexual orientation or gender identity — feel comfortable in their classrooms,” said TAP coordinator Lauren E. Frederico.

“High school can be a hard time for anybody,” Frederico said. “[The TAP students] wanted to do something to make sure that all students were empowered with the knowledge that you have a right to be safe and free in your school.”

The resulting YouTube video they created serves as a multimedia frequently-asked-question service for lesbian, gay, bisexual, transgender and self-identified “queer” (LGBTQ) students and their allies:

“Can I take a same-sex date to prom?”


“Can my school prevent me from starting a Gay-Straight Alliance?”


“Are my teachers required to call me by my preferred name or gender pronoun?”


Singh, who had a “brief cameo” in the production, said the conversations leading up to filming the “Know Your Rights” video gave her an outlet to discuss issues she was not comfortable speaking about in her own neighborhood. Now, she said, she has the confidence to speak up when she sees instances of mistreatment, even when she “maybe shouldn’t.”

Hin Hon Wong, another 16-year-old TAP member featured in the project, said even at Bronx High School of Science — one of the best specialized programs in the city — the environment for LGBTQ students still “isn’t very open.”

“I can understand why a student would be scared to express themselves differently or to decide to come out and tell everyone, unless they were with friends that they really trust,” she said. “I think not a lot of people talk about it.”

Singh, now at Bard College following an early graduation, said she appreciated the weekly TAP discussions for challenging her own assumptions about gay, lesbian and gender non-conforming communities.

“It makes me upset because I wonder how much I could have changed if I had learned these things sooner,” she said.

TAP members pose for a group photo at the NYCLU headquarters in lower Manhattan. Photo by Alberto Morales.

New law, new rules

Melissa Goodman, senior litigation and policy council for the NYCLU, said the Dignity legislation “takes a very novel approach to improving school climate.”

“It’s a kind of holistic and big picture thinking that says, ‘the best way to really deal with bullying is to prevent it before it happens,’” she said.

The act puts the impetus on administrators to be proactive when it comes to anti-bullying measures and seeks to protect whistleblowers who report incidents of discrimination from “retaliatory action.”

Following a legislative move by Gov. Andrew M. Cuomo on July 9, the Dignity act also includes strengthened language requiring schools to respond to cyberbullying, or threats made “through an internet service such as e-mail, chat room, discussion group, instant messaging, or social networking sites on or off school property.” The cyberbullying amendment will take effect on July 1, 2013.

In addition to new requirements for staff — principals must appoint a Dignity Act Coordinator, for example — teachers must find ways to incorporate lessons about civility, acceptance and the harmful effects of bullying into everyday classes.

“We’re hoping for a culture change,” said Goodman.

These curriculum adjustments are essential, advocates say, to help students feel more comfortable in their learning environments.

“LGBT students are constantly reading books that don’t reflect anything about their lives,” said DeWitt. “It’s a problem because there is this hidden curriculum which says ‘you aren’t normal,’ or ‘something must be wrong with my family.’”

Exemptions and enforcement

Although the Dignity act represents a step toward safeguarding the state’s at-risk youth from bullying and harassment, it is far from ironclad.

The law’s protections do not extend to students who attend private or religiously-affiliated schools and it is currently unclear how non-compliant schools will be penalized — if at all.

“The way that Dignity will be enforced is sort of an open book,” said Goodman. “We’re writing on a blank slate.”

According to Tom Dunn, spokesman for the New York State Education Department, there are no “specific penalties” associated with DASA. However, the department will “provide guidance to districts, as well as monitor compliance with reporting requirements.”

DeWitt, who has already implemented many of the new anti-bullying policies at his upstate New York elementary school, hopes that others will rise to the challenges presented by the Dignity act. But, he worries about what will happen if school administrators are reluctant.

“I’m sure some schools will be able to fly under the radar,” he said. “If there are schools that are really not doing anything — who is going to hold them accountable?”

Questions of enforcement are crucial following a New York Court of Appeals ruling in June which declared that the New York Human Rights Law does not apply to students who attend public schools.

Until that ruling and for over two decades, students who believed their rights under the state’s Human Rights Law had been violated were able to file unlawful discrimination complaints with the Division of Human Rights (DHR), an administrative agency with 12 offices across the state (four are in New York City).

According to Leticia Greene, deputy commissioner at NYS Division of Human Rights, the agency investigates complaints and brings cases where probable cause is found to an administrative law judge, who ultimately proposes a recommended order to the commissioner. Victims of discrimination can receive monetary compensation, and the commissioner can issue cease and desist orders, levy fines and order policy changes on victims’ behalf.

In the past, the DHR handled approximately 75 cases each year involving public school students.

The recent ruling, called “slightly bizarre” by Goodman, said the DHR “lacks jurisdiction to investigate complaints against public school districts.” Going forward, this means only students who attend non-parochial private schools, or private schools without any religious affiliation, will be able to get help from the DHR when seeking redress in discrimination cases.

The court’s decision leaves the nearly 2.6 million children attending public school in New York State without a defined agency to turn to if they encounter harassment of any kind. Several cases involving education discrimination based on sexual orientation were impacted by the ruling, Greene said.

“The decision of the Court of Appeals was disappointing because it limits the agency’s ability to carry out [our] mission,” she added.

When asked if the Department of Education will try to step in to fill the apparent gap in services, Dunn said they are currently “studying” the issue. Greene said she cannot comment on whether the void can be filled.

For now, Dunn recommends public school students address their concerns to their school’s appointed Dignity Act Coordinator. As a next step, parents can meet with the superintendent of the school or bring their concerns to the school board.

But what if a student’s case requires further investigation?

“If you’re a parent, you want to make sure your child is getting an education and is safe,” Goodman said. “Taking away that Division of Human Rights mechanism from students, I think, will have a negative effect on how easy it is for parents and students to enforce the rights that they have.”