LGBTQ Teachers Await Decision on Discrimination Protections

Josh Thompson teaches in Virginia, a state with no law against employment discrimination for LGBTQ workers.
Josh Thompson teaches in Virginia, a state with no law against employment discrimination for LGBTQ workers.
—Parker Michels-Boyce for Education Week
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Shanna Peeples was a veteran teacher with a long list of accolades, association memberships, and strong relationships with students and colleagues. But it wasn't until she received national recognition as the 2015 Teacher of the Year—an honor that brought her to the White House and across the country as a spokesperson for the teaching profession—that she finally felt secure in her job.

That's because Peeples is a lesbian and taught in Texas, one of nearly 30 states with no explicit employment-discrimination protections for LGBTQ workers, including teachers.

"You can legally be married to the person you love, but you can't do the work that you love," she said. "I think that's really not only short-sighted, but has long-term and lasting damage for the profession overall."

Now, LGBTQ teachers are waiting for the U.S. Supreme Court to decide whether the federal civil rights law guarantees them nationwide protection from workplace discrimination. While some individual school districts and cities have workplace protections for LGBTQ employees, many teachers in more than half of states are left unsure about how much of their personal lives—and identity—they can share publicly without fear of repercussion.

After all, 32 percent of non-LGBTQ Americans said they would be "very" or "somewhat" uncomfortable if their child had an LGBTQ teacher, according to a 2018 survey by GLAAD and the Harris Poll. That percentage has ticked up slightly over the past few years—in 2016, 28 percent of Americans expressed discomfort with that scenario.

"You certainly see tremendous pressure on LGBTQ teachers to remain closeted for fear of losing their jobs," said Eliza Byard, the executive director of GLSEN, formerly the Gay, Lesbian, and Straight Education Network. "Everyone knows what a huge impact it has on people to have to hide some aspect of who they are in their day-to-day lives. ... When people are free to be themselves, ... they do better work, and this is true for teachers."

A History of Discrimination

Throughout much of the 20th century, LGBTQ teachers in most places across the country would have been fired if they were found out, said Karen Graves, a professor and the chair of educational studies at Denison University in Granville, Ohio.

In Florida, the state legislature established an investigation committee that tried, from 1957 to 1965, to weed out gay and lesbian teachers and professors from public schools and universities. Nearly 200 educators lost their jobs, said Graves, who wrote about the investigation in the book And They Were Wonderful Teachers: Florida's Purge of Gay and Lesbian Teachers.

Sometimes, investigators from the committee pulled teachers directly out of the classroom and interrogated them, Graves said. The state teachers' union supported the investigations, which it considered a way to safeguard the profession.

"For gay teachers in the 1950s and 1960s, there was no recourse," Graves said. "No one as a group would stand up and protect them."

In the 1970s, cities began passing anti-discrimination laws. But opponents to those laws tended to attack gay teachers in their campaigns, saying that protecting them would endanger children.

In fact, in 1978, California state Sen. John Briggs sponsored a ballot referendum that tried to ban lesbian and gay people from working in the state's public schools. The bill would have also allowed the dismissal of teachers who supported LGBTQ rights, regardless of their own sexual orientation.

"What I am after is to remove those homosexual teachers who through word, thought, or deed want to be a public homosexual, to entice young impressionable children into their lifestyle," Briggs said in an interview during the campaign.

California voters struck the referendum down, with 58.4 percent voting against it. But in several other places during this time period, including Miami and St. Paul, Minn., voters rejected ordinances that would have protected gay and lesbian workers from discrimination, with teachers at the forefront of the debate.

In Oklahoma, a state law enacted in 1978 authorized schools to fire teachers who engaged in "public homosexual activity," as well as teachers who advocated for LGBTQ rights. The National Gay Task Force challenged the law, and the federal appellate court struck down the part of the statute that prohibited advocating for LGBTQ conduct, saying that it infringed on free speech rights. It upheld the part of the statute that prohibited public homosexual activity. The case then made it to the Supreme Court, which in 1985 affirmed the appellate court's decision in a 4-4 tie.

That same year, the Supreme Court declined to review a federal appeals court's decision permitting an Ohio school district to dismiss a bisexual high school guidance counselor. The court had ruled that the district did not violate the constitutional rights of the counselor, Marjorie H. Rowland.

In a dissent, Justice William J. Brennan Jr., joined by Justice Thurgood Marshall, argued that the court should have accepted the case for review, since it presents issues that "continue to puzzle lower courts."

The case "starkly presents issues of individual constitutional rights that have ... swirled nationwide for many years," Brennan wrote. "Discrimination against homosexuals or bisexuals based solely on their sexual preference raises significant constitutional questions."

A 'Really Close' Case

Now, the Supreme Court justices are deliberating over three cases that ask whether Title VII of the Civil Rights Act of 1964 prohibits discrimination against LGBTQ employees. The law bans discrimination "because of ... sex," and the argument at stake is whether the term "sex" encompasses sexual orientation and gender identity.

These cases—R.G & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission, which covers rights for transgender employees, and Bostock v. Clayton County, Ga., and Altitude Express Inc. v. Zarda, which address the question of sexual orientation—are the first major LGBTQ issues to be taken up by the court since the addition of President Donald Trump's nominees, Justices Neil Gorsuch and Brett Kavanaugh.

While Kavanaugh was nearly silent during the oral arguments in October and didn't tip his hand, Gorsuch, an avowed textualist who believes the words of the law should speak for themselves regardless of lawmakers' original intent, seemed conflicted in his questioning, saying that this case was "really close."

Last summer, the National Education Association, the American Federation of Teachers, the National School Boards Association, and AASA, the School Superintendents Association all filed an amicus brief to the Supreme Court in support of LGBTQ school employees.

These groups are "united in seeking to ensure that the educational mission of our schools is fulfilled," the brief says. "That result is best achieved when employment decisions for teachers and school staff focus on merit—their ability to educate children—rather than irrelevant characteristics."

Afraid to Come Out

In the past couple years, multiple LGBTQ teachers have said they were pushed out of the classroom, with some filing lawsuits against their districts. For example, a lesbian elementary art teacher in Texas was suspended in 2017 after she told her students about her wife. In a statement, the Mansfield Independent school district said conversations about sexual orientation are not age-appropriate for elementary students, and "parents have the right to control the conversation with their children."

The teacher, Stacy Bailey, has filed a federal discrimination lawsuit against the district. The district has since moved Bailey to a high school and renewed her contract, but the lawsuit is still pending. Bailey's lawyer told the Fort Worth Star-Telegram that he believes the district moved her to a different grade level, with a greater workload, in order to frustrate her into resigning.

When Victoria Thompson taught middle school math and science in South Carolina, an employment-at-will state with no employment protections for LGBTQ workers, she was reluctant to come out. While she didn't think her administrators would fire her for being gay, she was worried about parents' reactions. And she knew that as long as she stayed in South Carolina, she would never have job security.

"If I wanted to move to a different school, I never knew what the administration was going to be like, I never knew what the culture and climate was going to be like," she said.

Thompson moved to Tacoma, Wash., for her now-wife's job. There, she is protected by the state's anti-discrimination law and is publicly out in her high school math classroom.

"I know that me being gay will never be a reason why I'm dropped," she said. "It's just a very different environment, and it makes me more comfortable being myself."

Similarly, Josh Thompson, a high school English teacher (of no relation to Victoria), first taught in a rural area of central Virginia, a state with no employment-discrimination protections for LGBTQ workers on the books. He felt like he couldn't talk openly about his identity.

Now, he teaches in Blacksburg, home to Virginia Tech, and feels comfortable being out at school. He hangs a pride flag in his classroom, has plenty of LGBTQ books in his class library, and shares personal details with his students.

"I will talk about how my gay identity affects my understanding of the texts and my world and my place in it," Thompson said. "The very fact that I as a teacher am talking about [my identity] also legitimizes it, normalizes it. It's actually a big deal when you think about it, in terms of those power dynamics."

Indeed, LGBTQ educators say that part of the reason why they want to be out at work is to be a role model or a supportive adult for LGBTQ youth. Thompson said his presence lets LGBTQ students know they're not alone, and gives them a safe place to ask questions or get advice.

Peeples, the 2015 Teacher of the Year, who is no longer teaching, said one of her greatest professional regrets is not coming out to her students. But she says she was scared of losing her job and being unable to support her children. In 2018, when she was a teaching fellow at Harvard University, she identified herself as a lesbian for the first time in a classroom.

Then, one gay student told her, "When you're trying to determine how out to be yourself or if this is going to be a hopeful thing for you, you look to the adults you interact with the most when you're a kid, and that's teachers," Peeples recounted. "When you see them being out and proud, ... they show you the possible worlds that you can inhabit, and that you'll be OK, and you'll be happy and well-adjusted."

Conversely, "there's something pretty crushing for an LGBTQ student when they see an adult who might be a role model acting out of fear, hiding who they are," GLSEN's Byard said.

Now, LGBTQ teachers are waiting to see whether the Supreme Court justices will rule in their favor. Advocates say it's critical: A federal bill for nationwide non-discrimination protections passed the U.S. House of Representatives last year, but has stalled in the U.S. Senate.

"It [would be] powerful protection, but it's also like, ... 'Can we please stop talking about this now?'" Josh Thompson said. "The fact that my humanity and the humanity of many other Americans is still up for debate is pretty awful."

Vol. 39, Issue 18, Pages 1, 11

Published in Print: January 15, 2020, as LGBT Teachers Await Protections
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