The past few weeks have seen bad news—and one bit of good news—from the U.S. Supreme Court regarding LGBTQ youth and families. Let’s look at three cases, involving school discrimination and public funds, conversion therapy, and whether schools must tell parents the names and pronouns that their children use.
Can Schools Take Public Funds and Still Discriminate?
The U.S. Supreme Court agreed this week to hear St. Mary Catholic Parish v. Roy, a case to determine whether schools can receive public funds and still discriminate against LGBTQ children and children of LGBTQ parents.
The case involves two Catholic preschools in Colorado, which claim they should be allowed to receive public funding from Colorado’s universal preschool program (UPK), even though the schools’ beliefs are “incompatible” with state nondiscrimination laws requiring them to admit children regardless of their or their family members’ sexual orientation or gender identity. Not giving them an exemption from the nondiscrimination laws so that they may receive state funds, they say, is an unconstitutional form of religious discrimination.
Last September, the U.S. 10th Circuit Court of Appeals ruled in favor of the state, noting that the state was not banning religious schools as a whole from receiving state funds, just those that didn’t follow state nondiscrimination laws. In fact, 40 faith-based preschools are currently part of UPK, wrote the court, and “The program is a model example of maintaining neutral and generally applicable nondiscrimination laws while nonetheless trying to accommodate the exercise of religious beliefs.”
Religious institutions may even continue to advocate, for example, that “same-sex marriage should not be condoned,” said the 10th Circuit, but “when a school takes money from the state that is meant to ensure universal education, then its doors must be open to all.” The plaintiffs disagreed, and appealed the case to the U.S. Supreme Court.
Mardi Moore, CEO of Rocky Mountain Equality, said in a statement that:
Colorado’s universal preschool program was a landmark investment in our state’s children, a commitment that every family would have access to quality early education. The answer to whether taxpayer dollars should fund institutions that turn children away because of who their parents are should be clear. Taxpayers should not fund discrimination. Public funding carries public responsibility, and that basic contract cannot be selectively applied.
And Nikhil Vashee, senior director of education law and policy at Family Equality, asserted:
All families have a right to belong in the classroom—and in all aspects of their day-to-day life—without exemption or exception. The neutral and generally applied conditions of Colorado’s universal preschool program ensures that no matter what your family make-up is, you have access to learning environments that welcome, affirm, and help your child to grow.
Some may wonder why any LGBTQ parent or parent of an LGBTQ child would want to send their child to a faith-based school, particularly of a denomination known to discriminate. That’s a personal decision, of course, but I will note that it is not incompatible to be LGBTQ (or have LGBTQ children) and be a person of faith, or to decide that a faith-based school is the best option for one’s child for any number of reasons (including, but not limited to, academics, facilities, student safety, extracurricular programs, or friends/social opportunities). And if the school is taking public funds, then it should follow public laws, including those that prohibit discrimination.
I have to say, I am not optimistic about the outcome of this case, given the current Supreme Court and its willingness to rule in favor of “religious exercise” over exposure to LGBTQ people in school books and discussions. I will remind readers, however, that no matter the outcome, there is nothing here that would require schools (even religious ones) to discriminate. Much would still depend upon the specific school and the larger administrative unit that it may be part of. That’s not to say that a ruling for the plaintiffs would be good, though; in fact, it might set the stage for further kinds of discrimination in public programs, and could be very dangerous indeed. I’ll be watching this case closely, and hope you do, too.
Do Conversion Therapy Bans Violate Free Speech?
The U.S. Supreme Court also ruled in Chiles v. Salazar on March 31 that Colorado’s law banning licensed mental health professionals from practicing conversion therapy on minors “likely violates the First Amendment’s free speech protections,” as the National Center for LGBTQ Rights (NCLR) noted.
That’s not a good ruling. NCLR stressed, however, that:
The Court’s narrow decision addressed only one specific regulatory approach—advance restrictions on licensed mental health providers—and left untouched the broad array of legal tools such as malpractice and consumer fraud laws that protect LGBTQ youth and hold conversion therapists accountable for the harm they cause. As the decision today makes clear on p. 21, “a traditional malpractice action” remains viable and does not implicate free speech.
I encourage you to read NCLR’s full statement about that decision and/or to listen to NCLR Legal Director Shannon Minter’s interview on NPR about the case. Yes, this is bad, but the ruling has limits, and NCLR and others are deploying a number of strategies to continue protecting LGBTQ youth.
Must Schools Tell Parents the Names and Pronouns Students Use in School?
And in one piece of good news, the Supreme Court this week refused to take a case (Foote v. Ludlow) in which parents of a Massachusetts middle school student argued that teachers and counselors should be required to tell parents when a student uses a different name and/or pronouns at school. That leaves in place a U.S. First Circuit ruling (PDF) in favor of the school’s policy not to tell parents without first obtaining the student’s consent—a policy developed because “s]ome transgender and gender nonconforming students are not openly so at home for reasons such as safety concerns or lack of acceptance.”
As GLAD Law Senior Staff Attorney Chris Erchull said in a statement:
Supporting students means taking their specific circumstances into consideration, including the student’s age and concerns about abuse or rejection, and empowering them to share important parts of themselves with their families on their own terms. The lower courts rightly found no constitutional mandate that schools automatically disclose such information without the student’s consent.
Hear, hear. As a parent, I’ve always hoped my son (who is now grown) would not be concerned that I would ever reject him, no matter what his identity, but if he ever was afraid of my response, or just needed some time to figure out how to tell me, then I would not want his school to step in. Parenting is a constant process of learning to let go as our children grow into their independent selves, and “parents’ rights” should never trump young people’s safety and healthy development.
(Disclosure: I am an unpaid, volunteer member of Family Equality’s Communications Committee.)