commentary
Time for the law to protect GLBT students’ privacy
Published Thursday, 19-Jan-2006 in issue 943
BEYOND THE BRIEFS: sex, politics and law
by Robert DeKoven
The reality is that while life isn’t so bad for GLBT adults, especially in California, life for openly or exposed GLBT kids is, in many respects, a living hell.
GLBT teens account for one-third of teen suicides; they represent 80 percent of the bullying cases in schools; almost 100 percent of the hate crimes/incidents in schools; and they lead all categories in substance abuse (e.g., tobacco, alcohol and drugs). And despite federal and state laws protecting GLBT kids from abuse at school, not much is changing.
Delores Jacobs, chief executive officer of The Center, indicated to me that the reason why there is an even greater need for GLBT young adults in San Diego to seek shelter is because of a life of hell at school. So why don’t these teens take advantage of the federal, state and local laws prohibiting hate crimes and bias against GLBT youth?
Jacobs said most don’t want their parents and families to know they are GLBT, or even perceived by others to be so. They know that if they complain about abuse to a school official, that person will tell their parents the student is GLBT or perceived by others to be.
GLBT teens don’t report that they are victims of hate crimes at school because they fear: 1) school officials will tell their parents about their real or perceived sexual orientation; 2) school officials won’t do anything to the abusers; and 3) school officials (who are homophobic) will engage in further abuse (e.g., singling them out).
Thankfully, a recent federal court ruled that school officials may not disclose a student’s sexual orientation to his or her parents (otherwise it violates privacy laws). That ruling needs to be codified into California law so that school officials throughout the state follow this practice.
School districts cannot “out” gay students to their parents even if their sexual orientation is known on campus.
Charlene Nguon sued Garden Grove Unified School District officials because they unfairly disciplined the 17-year-old student for hugging and kissing her girlfriend on campus. They also revealed her sexual orientation to her mother, and forced the teen to temporarily change schools.
The district tried to argue that Nguon had no expectation of privacy regarding her sexual orientation, because she was openly gay at school.
“School districts cannot ‘out’ gay students to their parents even if their sexual orientation is known on campus.”
But U.S. District Judge James V. Selna rejected the district’s argument by allowing a claim that the district violated Nguon’s privacy rights to go forward.
The judge based his ruling on California’s “right to privacy.” The judge found that Nguon had a reasonable expectation of privacy in keeping information about her sexual orientation private. She had the right to determine when and how she wanted (if ever) to inform her parents about her sexual orientation.
Ironically, over 30 years ago, a gay man named Oliver Sipple saved the life of then-President Gerald Ford. In writing a story about Sipple, a newspaper disclosed that Sipple was gay.
Sipple was not out to his family, but was well known in the S.F. gay community. Under a different privacy law, known as “public disclosure of private facts,” a court ruled that Sipple’s sexual orientation was public because he was openly gay in San Francisco and he had not undertaken measures to actively conceal his sexual orientation from his family. However, Sipple was an adult male, living openly in San Francisco, and he was involved in a public matter (saving the life of a U.S. president).
Nguon took measures to keep her sexual orientation from her parents. And simply being openly gay in school does not make her a public figure caught up in public controversy. California law should treat a student’s sexual orientation the same way it treats students’ confidential medical services.
Under California law, schools may not notify a parent about a student’s abortion or other confidential medical services, such as birth control. School officials may not notify a parent when a student leaves school to obtain confidential medical services.
The reason for the law is the public interest in preserving the health and safety of the minor. It’s simple logic. For example, a minor might not seek treatment for a sexually transmitted disease if he or she thought a parent would find out. They could fear repercussions.
In cases involving sexual orientation, the interests are even greater. As many of you know, such revelations can cause some parents to disown their children, kick them out of the house, or worse.
Robert DeKoven is a professor at California Western School of Law.
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