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"Other Students Always Used to Say, 'Look at the Dykes'": Protecting Students from Peer Sexual Orientation Harassment |
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Amy Lovell |
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| Student-to-student sexual orientation harassment is a serious problem; it harms, often severely, a considerable number of students. Existing laws, however, fail to address this problem adequately. Some laws currently ban discrimination based on sexual orientation, but these laws have been applied only in a minority of jurisdictions to date. Laws prohibiting discrimination based on sex are more common. Although these laws, properly interpreted, should provide protection to victims of sexual orientation harassment, most courts have refused to interpret sex discrimination laws in this fashion. Additionally, even if courts applied sex discrimination laws to student-to- student sexual orientation harassment, these laws, like current laws that ban discrimination based on sexual orientation, provide only incomplete protection to students subject to harassment. Current laws afford relief only when the victim of harassment is able to demonstrate that the school and/or harasser acted or failed to act specifically by referring to the victim's sexual orientation and making a decision based on that sexual orientation. Because student-to-student sexual orientation harassment occurs and causes harm even when the school's and/or the harasser's motivation for acting or failing to act is something other than the victim's sexual orientation, existing laws, including sex discrimination laws, are too narrow with respect to the scope of protection that they provide. Because of this gap in protection, this Comment proposes a statute that comprehensively addresses student-to-student sexual orientation harassment. This Comment argues that the slightly increased responsibility that the proposed statute places on schools is fully justified by the need to prevent student-to-student sexual orientation harassment and its negative effects. | |
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Copyright
© 1998 by California Law Review, Inc. |
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