The American Right to Be Out

Americans have a constitutional right to be openly gay, lesbian, or transgender, and in fact the Constitution guarantees and protects that right, asserts Stuart Biegel. His new book, The Right to Be Out: Sexual Orientation and Gender Identity in America’s Public Schools, is a timely release from the University of Minnesota Press.

Biegel argues that homosexual and transgender people should be able to be “out” simply because they are American. The Constitution, he argues, inherently encodes a “right to be out” in the First Amendment, which guarantees the right to free expression, whether of ideas or identity, while the Fourteenth Amendment guarantees equal treatment under the law and public programs.

Those guarantees and protections apply to all Americans, and that includes all public-school students, says the author, a senior lecturer in education and law at the University of California at Los Angeles. Biegel allows that his constitutional argument remains contentious, but he also describes gathering legal recognition of it in court decisions and laws passed by state legislatures that recognize and reiterate those guarantees. He says that not all of those measures specifically mention the world of  K-12, but many nonetheless bear on the legal landscape of schools.

Elaborating that legal framework is at the core of the book, and it is a key element in his belief that life is improving for gay, lesbian, and transgender students, even as he describes the enormous amount of bullying they experience.

Yet he remains optimistic that treatment of such students in the United States is improving. “I’m the eternal optimist, and I believe that all things considered, we’re moving in a good direction,” he says by telephone from UCLA.

The author does not deny that public schools still often are hostile environments for students of minority sexual orientation, and that discrimination continues in courtrooms, at ballot boxes, and in schools and school-board rooms. Still, he notes, social developments, such as the anti-bullying movement, have made it more likely that protections will be not only accorded, but enforced.

It is not only optimism that leads him to make his claim. He says schools are doing better in shaping their curricula to reflect the experience of people of minority sexual orientation and gender identity, and have implemented various other programs. His book includes many additional recommendations.

The scholar, author of the casebook Education and the Law and a recognized expert in the field, has witnessed the treatment of homosexual and transgender students over many years in such roles as special counsel for the California Department of Education. His new study is a thorough summation of decades of court records, research literature, and memoirs written by lesbian, gay, bisexual, and transgender people of their difficult school experiences.

He is not complacent about progress. Biegel believes that a backlash is occurring, with flare-ups of violence and other hostility due to such social developments as growing acceptance and legalization of gay marriages, civil unions, and same-sex partnerships.

“While a lot of people are very happy about this, many others are not, or are not sure, so there is tension, and that sometimes spills over into school communities,” he says.

No area of school life harbors hostility and paranoia more than sport, he contends. One chapter of the book is devoted to that world. Biegel argues that if reformers can enlist current and former coaches and athletes, and encourage them to dismantle myths about the presence of gay and lesbian students on teams, “you can make a real change in the climate for gay students, because sports culture in many places is very often the cool culture.”

“Genuine openness will benefit everyone,” because as stigmatization decreases, with it wanes living in fear of being found out, harassed, or worse. He makes the case that as more and more people have come to declare their identities, it has consistently helped to demystify and humanize minority sexualities, to the betterment of all.—Peter Monaghan