Don’t Say Gay or God: How Federal Law Threatens Student Religious Rights and Fails to Protect LGBTQ Students

Authors

Stephen McLoughlin

Abstract

Federal law requires schools to protect students from discrimination based on their sexual orientation and gender identity. This protection is based on the principle that students must be free to explore their self-identity within the school environment as part of their intellectual development. Thus, schools must eliminate speech that threatens LGBTQ students based on their gender identity or sexual orientation. However, schools must also protect free speech and religious rights. Indeed, the expression of religious beliefs is also crucial to intellectual growth. Thus, schools must develop student speech policies that protect LGBTQ students from harmful speech while protecting controversial religious student speech. Unfortunately, federal law fails to provide clear guidance to help schools find this balance. Instead, federal law requires schools to limit speech that may cause “psychological trauma.” This vague requirement causes schools to adopt overly broad speech codes restricting controversial religious speech. These undefined speech codes also fail to target the specific speech that causes harm to LGBTQ students. To help schools find the necessary student speech balance, this Article proposes a new conception of harmful student speech based on social science’s insight into the specific features of speech that threaten LGBTQ students. This “Harmful Anti-LGBTQ Student Speech” concept will allow schools to eliminate speech that causes psychological trauma while protecting controversial speech necessary for religious identity development. By utilizing social science, this Harmful Anti-LGBTQ Student Speech conception will enable schools to create an educational environment that supports the intellectual development of all students.

Rights

© 2023 Brigham Young University Law Review

Recommended Citation

Stephen McLoughlin, Don’t Say Gay or God: How Federal Law Threatens Student Religious Rights and Fails to Protect LGBTQ Students, 49 BYU L. Rev. 117 (2023).
Available at: https://digitalcommons.law.byu.edu/lawreview/vol49/iss1/8