In 1961, Fannie Harris Fiddmont was forced to leave her job as a teacher in the Denver Public School system because of an unseemly condition — pregnancy. Compulsory maternity leave for educators was common around the country back then. Once they were showing it was believed that pregnant women carried an obvious manifestation of a private act that impressionable young minds shouldn’t be exposed to each day. It was also assumed that pregnant women, given their delicate condition, weren’t up to the tasks of teaching.
“Although it was no surprise to me that I would have to leave when the time came — the maternity leave policy stated the number of work weeks a pregnant employee could remain on the job based upon her predicted delivery date – I was certainly energetic enough and capable of performing my job long after I was allowed to continue working,” Fiddmont says.
It wasn’t until the Pregnancy Discrimination Act (PDA) of 1978 that Title VII of the Civil Rights Act of 1964 was amended to “prohibit sex discrimination on the basis of pregnancy.”
The blatant sex discrimination is astonishing to us now, but the sex discrimination against LGBTQ educators that burgeoned in the same period of history continues even today.
In 1972, Jim Gaylord was a well-regarded social studies teacher in Tacoma, Washington, until he received a letter telling him he was to be fired.
It read, in part: “The specific probable cause for your discharge is that you have admitted occupying a public status that is incompatible with the conduct required of teachers in this district. Specifically, that you have admitted being a publicly known homosexual.”
Yet in 2017 it is still legal to fire someone for being LGBTQ.
“An educator can marry her wife on Sunday and be fired on Monday,” says Eric Harrington, a civil rights attorney with NEA’s Office of the General Counsel. “This is not only morally wrong; it is illegal under Title VII of the Civil Rights Act of 1964.”
NEA and many other organizations dedicated to equity and civil rights have been part of a steady, albeit quiet, revolution toward employment equality for LGBTQ Americans.
“With the recent focus on marriage equality, this form of discrimination wasn’t hitting the national radar,” says Harrington. “But employment discrimination is next up in the fight for LGBTQ rights and we’ve made lots of progress.”
Unfortunately, the federal government is rolling back much of that progress.
The Trump Agenda: Quashing LGBTQ Rights
So far the Trump administration has:
- reversed a policy recognizing that transgender people are protected from employment discrimination;
- rescinded guidance protecting transgender students and replacing it with guidance that allows schools to discriminate against them;
- instituted a ban on transgender people serving in the military;
- worked to roll back Obamacare’s rules protecting transgender people from discrimination in health care;
- tried to cut questions that would identify LGBTQ people in various data collection efforts;
- and dropped out of the lawsuit challenging North Carolina’s anti-transgender law, HB2.
The Department of Justice also argued in court that firing an employee for being gay was justified (Zarda vs. Altitude Express) and, in a reversal of the Obama administration, argued that a business was justified in refusing service to a same sex couple (Masterpiece Cakeshop v. Colorado Civil Rights Commission).
“The power of the federal government to influence LGBTQ workplace rights can’t be underestimated,” Sharita Gruberg, associate director of the LGBT Research and Communications Project at the Center for American Progress, told ThinkProgress.
The resistance can’t be underestimated either, including a major pushback from educators who are going to battle to protect LGBTQ rights, especially for their students.
Educator and Community Support for LGBTQ Students
When the Trump administration rescinded the Obama administration’s “Dear Colleague” letter to school districts, which made clear that the administration was interpreting Title IX — the law that prohibits sex discrimination in education — to include transgender students educators jumped to their defense all over the country, including Frederick County, Maryland.
“Educators, parents and students came out in force,” says Missy Dirk, president of the Frederick County Teachers Association. “It was clear this was about our kids and their well-being, not politics.”
With the support of the entire community, including faith-based groups, the Frederick County School Board passed a policy to protect and welcome transgender students. The policy allows students to choose which bathroom to use based on their gender identity and allows transgender students to participate in sports that align with their gender identity.
At the same time, the policy clearly expands privacy for all students. Any student, for whatever reason, can ask for and be granted a private changing area or bathroom.
The vast majority of residents, regardless of political affiliation, were in favor of the policy – it was a clear, just policy that allowed all students to feel welcome and safe.
“A question I was frequently asked by reporters who covered the story was how, in a county like Frederick which is not known to be progressive or liberal at all, we could have a school board pass such an inclusive policy,” Dirks says. “The reason is obvious: we care about our kids! We are not doing this because of politics. Our board did this because they wanted to protect students who felt they were unsafe. It would be unfathomable that adults elected to take care of these kids would do anything else.”
Amanda Shapiro, Civil Rights Law Fellow with NEA’s General Counsel office, said the campaign to pass the policy was data driven, narrative driven and information driven. The Frederick County Teachers Association heard the student stories and also read the results of a survey showing that LGBTQ youth in their county were more vulnerable to depression and suicide than anywhere else in the state of Maryland.
“Universally, the educators of the Frederick County Teachers Association said, ‘we see you, we hear you, and we’re going to be your allies no matter what,’” Shapiro says. “The educators realized that if students felt they had one adult ally, rates of suicide and depression dropped precipitously. It became clear that their support and understanding could stand between life and death for students.”
Let’s Talk About Sex…and Title VII
Much of the focus of the Trump administration’s work to undermine LGBTQ rights centers around Title VII of the Civil Rights Act. Title VII bars employment discrimination “because of sex,” which many federal courts have interpreted to include sexual orientation discrimination. The Equal Employment Opportunity Commission decided in 2015 that Title VII’s ban on sex discrimination does protect gay employees.
But of the current administration’s actions to undermine LGBTQ rights, one of the most surprising was when the Department of Justice (DOJ) broke with the Equal Employment Opportunity Commission by filing a brief last July in a Second District Court case – Zarda vs. Altitude Express — arguing that Title VII does not protect gay people. The court never asked for DOJ input and those following the case were puzzled by the divide between government branches. (The DOJ brief also happened to be filed on the same day that President Trump announced on Twitter that transgender people would be banned from serving in the military.)
“I’ve never seen the federal government on opposite sides,” says NEA’s Harrington. “This was unprecedented, like so many actions of this administration.”
The arguments in the Zarda case revolved around a single word – sex. Title VII of the 1964 Civil Rights Act prohibits employers from discriminating against employees on the basis of “race, color, religion, sex or national origin.” The question is whether sex discrimination is against employees because they are either male or female, or because they fail to conform to male or female stereotypes.
Gender, often used interchangeably with sex, refers to differences between boys and girls or between men and women. But it’s broader than sex in that it encompasses not only biological sex but personal and societal identity, feelings, appearance, expressions, and behavior that collectively define what is male or female.
That’s the crux of the argument NEA made in the amicus brief it filed for the court in the Zarda case — that sex discrimination is not and never has been about the differences between or the segregation of the genders. It’s about nonconformance to strict gender norms.
Exhibit A in this argument? Teachers.
More than any other profession, educators have been subjected to and forced into gender norms from the earliest days of the school house. The pendulum has swung wildly, but the motivation has been consistent — the various regimes of sex discrimination were to ensure that teachers reflected and perpetuated conventional gender roles and norms, and those roles and norms are inevitably bound up with norms about human sexuality and sexual orientation.
“Sex discrimination is not simply about treating men and women differently; it’s not just a segregation issue,” says Harrington. “We tell the story about how sex discrimination against educators has always been about enforcing gender norms.”
A Look Back at Discrimination for Gender Nonconformity
When America’s first public schools opened in Colonial times, men were the masters of the school house. Women were excluded from teaching to prevent them from competing with men for finite monetary resources and so they could focus on their place in the home and domestic life — cooking, cleaning, and raising children. It was also believed that they didn’t have the societal or physical stature to lead a classroom. As time went on, women were eventually allowed into the profession, but this time because of the stereotype that they were nurturing by nature and that teaching was essentially childcare and an extension of mothering.
In 2008, 86 percent of gay and lesbian teachers heard homophobic comments in schools; 35 percent feared they would lose their job if they were outed to an administrator; and 53 percent feared they would lose their job if they were outed to students.
Later, only single women were allowed to be teachers because married women had homebound duties. In fact, there was a marriage ban in schools. Then the pendulum swung back and single women were barred from the profession because, by remaining single, they transgressed gender norms and were assumed to be lesbian, or that they weren’t abstaining from sex – with men or women — and were therefore promiscuous and unsuitable role models, or that they were encouraging their female students to avoid marriage.
Marriage bans became a relic of the past and married teachers became the preference until, of course, they got pregnant. Then they were forced from the classrooms because their condition led to an inability to work and impure thoughts among students.
Discrimination against gay and lesbian teachers has been motivated by the same desire to enforce gender norms and prevent teachers from exposing students to gender norms different from the prevailing views of the day, and gay and lesbian teachers were systematically purged from schools.
Single male teachers were assumed to be gay and were excluded from the profession because of the fear that they would convert boys to homosexuality, or worse, subject them to sexual abuse.
The gender-norm enforcement that harmed gay and lesbian teachers also harmed straight teachers. Straight male teachers couldn’t be too effeminate or they’d risk being fired for being gay. Female teachers couldn’t be too masculine for the same reason, and a culture of fear was cultivated that lasted through the 20th century.
“When I was in school, kids would start rumors that the teachers they didn’t like were gay with the hope they’d be fired,” says Fairfax County, Virginia, educator Robert Rigby.
Even today, gay and lesbian teachers are fired from schools and face workplace harassment. One survey notes that in 2008, 86 percent of gay and lesbian teachers heard homophobic comments in schools; 35 percent feared they would lose their job if they were outed to an administrator; and 53 percent feared they would lose their job if they were outed to students.
“Now it’s even more alarming,” says Rigby, who was recently harassed by a student for the first time in more than fifteen years for being gay. “The policies and the general noise have made schools a far less welcoming environment for LGBTQ employees, but more alarming is what it’s doing to kids.”
As Goes Title VII, So Goes Title IX
Ruling that Title VII prohibits sexual orientation discrimination will not just protect LGBTQ teachers; it will protect LGBTQ students as well. Title VII and Title IX (which prohibits sex discrimination in education programs) are construed similarly and if LGBTQ adults lose rights, LGBTQ students risk losing Title IX protections —- protections that are more important than ever as the Trump Administration’s latest actions suggest that schools are free to discriminate against students for just being gay, lesbian, or transgender.
Now it’s even more alarming. The policies and the general noise have made schools a far less welcoming environment for LGBTQ employees, but more alarming is what it’s doing to kids.” – Robert Rigby, educator, Fairfax County, VA.
In fact, civil rights claims made by LGBTQ students are no longer being investigated by the Department of Education. But these students need the protection of federal law. The statistics speak for themselves.
According to GLSEN’s 2015 National School Climate survey, nearly 60 percent of gay and lesbian students feel unsafe at school because of their sexual orientation; 85 percent report they have been verbally harassed; 60 percent report they have been sexually harassed; 27 percent report they have been physically harassed; and 13 percent report they have been physically assaulted. Research consistently shows that harassed and bullied students have lower grades, higher absenteeism, higher rates of depression, and are less likely to attend college.
What’s more, discrimination harms all students by degrading the overall school climate. School climate—the relationships among students, families, teachers, support staff and administrators that sets the tone for people feeling socially, emotionally, and physically safe in school—is a key predictor of student health and academic success.
Discrimination Targeting Educators Hits Students Just as Hard
Discrimination against LGBTQ teachers also harms LGBTQ students. The role teachers play in supporting gay, lesbian, and transgender students cannot be overstated. When students have the support of both their teachers and peers, they have higher academic, emotional, and social success. And in schools that have Gay-Straight Alliances, which provide a safe space for LGBTQ students and their allies, LGBTQ students are subject to less harassment and feel safer at school.
Gay and lesbian teachers in particular provide key emotional support. And when gay and lesbian students see that those teachers are closeted or are terminated or harassed for being gay, the message of stigmatization that sends is unmistakable.
“I can’t tell you what I would have done to know a gay teacher that I could relate to when I was a kid,” says Rigby. “It would have changed the next two or three decades of my life. To have somebody in the room or in the school who is like you is a miracle in terms of self-acceptance. As all the research indicates, if you believe you don’t belong, you believe you don’t matter.”
So Where Are We Now?
It’s easy to get lost in the labyrinth of court cases and decisions.
Last March, a three-judge panel of the 11th Circuit Court denied the claim of Jameka Evans, a hospital security guard who says she was forced out because she is a lesbian, violating Title VII by discriminating against her because of her sexual orientation. Later, a full panel of the 11th Circuit Court of Appeals declined to rehear the case, letting stand the decision that Title VII doesn’t include discrimination for sexual orientation.
That decision was in direct opposition to the finding of another federal appeals court. In April 2017, a federal appeals court in Chicago ruled that Title VII does prohibit discrimination on the job against lesbian, gay, bisexual, and transgender employees. It was the first ruling of its kind from a federal appeals court.
The result is what’s known as a “circuit split.” Since the 11th Circuit Court concluded that Title VII does not prohibit discrimination on the basis of sexual orientation and the 7th Court found that it does, different parts of the country are in conflict in their interpretation of the law. In one part of the country, it’s legal to discriminate and in another part of the country, it is not. That’s why Evans and her lawyers have taken their case all the way to the Supreme Court who, if they agree to hear it, will decide once and for all if Title VII includes sexual orientation.
Meanwhile, the Trump Administration dropped another bombshell in early October when Attorney General Sessions issued extensive guidance regarding “Protections for Religious Liberty” throughout the federal government.
The guidance has a whopping 20 “key principles,” which essentially ensure that claims of religious freedom can be used to justify discrimination against the LGBTQ community.
Lawyers around the country agree that the memo issued by the United States Attorney General is completely devoid of law.
“If a clerk or a law student wrote the actual memo that Sessions released, you’d give them a D or an F,” Harrington says. “It ignores the legal cases made on the other side while citing the argument of a judge who disagrees with what the guidance puts forth. It is naked political nonsense, not law.”
In fact, Sessions’ guidance is a follow-up to an executive order President Trump issued in May regarding “religious freedom.” While it focused on allowing religious organizations and leaders to engage in political speech without penalty and weakened the Obamacare contraception order, it also included the instruction that, “In order to guide all agencies in complying with relevant Federal law, the Attorney General shall, as appropriate, issue guidance interpreting religious liberty protections in Federal law.”
Rebecca Isaacs, executive director of the Equality Federation, said in a statement the religious freedom guidance is “an attack on the values of freedom and fairness that make this nation great.”
“It opens the door for discrimination in the workplace and public services, flying in the face of the majority of Americans [who] believe laws should protect LGBTQ people from discrimination,” Isaacs said.
But it’s not going to happen without a fight.
“A year ago we went to the White House to advocate for LGBTQ rights,” says Harrington. “Now we go to court.”
Find out what you can do to help protect the rights of LGBTQ educators and students. NEA’s Office of Human and Civil Rights offers guidance, training and other resources for educators.
- Ask your district to adopt transgender inclusive policies.
- Find out about training on safety, bias and LGBTQ issues.
- Take a pledge to ensure safe learning environments for all students.
- Learn more about NEA’s social justice work. Visit NEA EdJustice
- Schools in Transition: A Guide for Supporting Trangender Students in K-12 Schools
- Download the Guide: (PDF, 23 MB, 56 pgs.)
- What Do You Say to ‘THAT’S SO GAY’ and Other Anti-LGBTQ Comments?( PDF, 540 KB, 2 pgs.)
- Who Can Marry Whom?Inclusive conversations about marriage ( PDF, 319 KB, 2 pgs.)