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Journal of LGBT Youth
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Can You Be Out at School? A Review of
The Right to Be Out: Sexual Orientation
and Gender Identity in America's Public
Schools
Catherine A. Lugga
a Graduate School of Education, Department of Educational Theory,
Policy, and Administration, Rutgers University, New Brunswick, New
Jersey, USA
Published online: 07 Jul 2014.
To cite this article: Catherine A. Lugg (2014) Can You Be Out at School? A Review of The Right to Be
Out: Sexual Orientation and Gender Identity in America's Public Schools, Journal of LGBT Youth, 11:3,
341-345, DOI: 10.1080/19361653.2014.880987
To link to this article: http://dx.doi.org/10.1080/19361653.2014.880987
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Journal of LGBT Youth, 11:341–345, 2014
Copyright © Taylor & Francis Group, LLC
ISSN: 1936-1653 print / 1936-1661 online
DOI: 10.1080/19361653.2014.880987
Can You Be Out at School? A Review of The
Right to Be Out: Sexual Orientation and
Gender Identity in America’s Public Schools
CATHERINE A. LUGG
Graduate School of Education, Department of Educational Theory, Policy, and
Administration, Rutgers University, New Brunswick, New Jersey, USA
This review provides a brief synopsis of Stuart Biegel’s work that
examines the legal rights of lesbian, gay, bisexual, and transgender
(LGBT) students and educators within the U.S. public school system.
Biegel presents a provocative legal analysis of the environments
confronting LGBT people who study, work, and play within U.S.
public schools.
KEYWORDS Book review, legal rights, LGBT educators, LGBT
students, public schools, U.S. law
Stuart Biegel’s The Right to Be Out: Sexual Orientation and Gender Identity in
America’s Public Schools presents a legal analysis of the rights of lesbian, gay,
bisexual, and transgender (LGBT) students and educators to be publicly out
about their sexual orientation and/or gender identity in U.S. public schools.
Given the rapidly changing political situation confronting LGBT people in
the United States, the book’s publication is timely and should receive a fair
amount of traction with scholars, educators, and activists.
The book is organized into two main sections, and each section has
four chapters. The Law, the book’s first section, maps out where an individ-
ual who holds an LGBT identity stands under U.S. law regarding discrim-
ination. Such mapping is not an easy task, because LGBT identity is not
a “suspect classification” or an “immutable marker of identity” at the fed-
eral level, meaning that intentional discrimination against a LGBT individual
does not violate the U.S. Constitution per se, unlike sex-based and race-based
Received 22 October 2013; revised 23 December 2013; accepted 2 January 2014.
Address correspondence to Catherine A. Lugg, Graduate School of Education, Department
of Educational Theory, Policy, and Administration, Rutgers University, 10 Seminary Place, New
Brunswick, NJ 08901-1183. E-mail: catherine.lugg@gse.rutgers.edu
341
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342 C. A. Lugg
discrimination, which do violate the U.S. Constitution, to name but two exam-
ples. However, this area of the law is rapidly evolving in the wake of United
States v. Windsor (2013). While the U.S. Supreme Court declined to invoke
suspect classification in its ruling for Edith Windsor, which would have af-
forded LGBT people direct constitutional protections against discrimination,
the Court ruled more narrowly under the Fifth Amendment, which bars the
state from inflicting intentional harm on unpopular political minorities. The
case involved Edith Windsor and Thea Spyer, a lesbian couple who legally
married in Canada in 2007 but whose marriage could not be recognized by
the U.S. federal government because of the ill-named Defense of Marriage
Act (DOMA). While the state of New York recognized their marriage as valid,
the U.S. federal government declined to do so, meaning Windsor was subject
to significant federal inheritance taxes after Spyer’s death in 2009. Although
she and Spyer had been partners since 1963, for purposes of U.S. federal
tax law they were deemed to be “legal strangers”—not spouses—and Wind-
sor was taxed as such. The Supreme Court ruled that the intent of DOMA
was to inflict governmental harm on an unpopular political group, hence
it was unconstitutional (see United States v. Windsor, 2013). That said, in
an increasing number of individual states and municipalities, LGBT identity
has become a suspect classification under either state constitutions or local
ordinances.
Biegel does a good job of marching the reader through the most relevant
case law (but thankfully not every related case) that has occurred over the
past 40 years. For example, Biegel rightly anchors his discussion of rights
for LGBT students in Tinker v. Des Moines (1969), where the U.S. Supreme
Court ruled that K–12 students do not shed their First Amendment rights
regarding speech once they enter public school. While these speech rights
are limited—a student cannot “materially and substantially” interfere with
the operation of the school—student speech cannot be suppressed to avoid
discomfort. Subsequent federal court decisions have upheld students’ rights
to be out, which is a form of free speech (see Fricke v. Lynch, 1980; Boyd
County High School Gay Straight Alliance v. Board of Education, 2003).
By contrast, Biegel observes that the legal status of LGBT educators is
far more complex, because all public educators have restrictions placed on
their speech, especially after the U.S. Supreme Court ruled that public em-
ployers can severely curtail the speech of their employees (see Garcetti
v. Ceballos, 2006). As a result, public educators cannot be seen as ad-
vocating for or against a particular political, social, or religious point of
view, for example, but must remain “neutral” if there is no official state
or board policy (Biegel, 2010, pp. 60–62). Furthermore, public educators
cannot speak in a manner that would seem to violate state and/or board
policy, and that includes speaking against unconstitutional measures like
“No Promo Homo polices” (Eskridge, 2000), which ban all positive mentions
of LGBT identity and people. The result is that many LGBT public educators
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Book Review Essay 343
feel compelled to remain silent regarding their identity (Adelman & Lugg,
2012). As Biegel (2010) notes, “Public school educators may have an emerg-
ing right to be out under the law, but in day-to-day educational practice—and
particularly in certain communities—that right may be severely curtailed” (p.
49). At present, then, LGBT public educators working in the United States
have distinctly fewer legal protections than their LGBT charges.
Nevertheless, Biegel poses a provocative challenge to those who seek to
silence discussions about LGBT identity in U.S. public schools by offering an
analysis that combines queer identity with religious identity, thereby involv-
ing both the Fourteenth Amendment (equal protection) and First Amendment
(speech, but also religion). To some extent, he turns the argument offered by
religious conservatives on its head. Conservatives argue that mere mention of
queer identity in a public school setting constitutes a state-sponsored offense
against religious people. By wrapping both the First and Fourteenth Amend-
ments into a LGBT religious identity argument, Biegel (2010) argues that
efforts to silence queer identity actually presents a form of state-sponsored
religious offense against LGBT people who happen to be religious (pp.
16–22). Of course, such an argument does not offer much relief for nonreli-
gious LGBT people. While such an argument leaves this reviewer somewhat
cold (in a secular state, one should not need a religious identity to be treated
equitably by a governmental actor), it could be used to great effect in lo-
cales that are less religiously diverse and/or invested in a secular state. The
opportunities for causing political heartburn for less-than-sympathetic board
members, administrators, and teachers are literally endless.
The book’s second section, Public Policy, is similarly provocative. While
it has the expected chapters on “Addressing School Climate” and “Creating
Change in the Classroom” (curriculum, pedagogy, and LGBT content), there
is also a chapter on “The Culture of School Sports” and another on “Con-
fronting the Challenges Faced by Transgender Youth.” The sports chapter is
somewhat underinclusive, in that Biegel almost completely focuses on inter-
collegiate athletics and professional sports for young men and not women.
The chapter contains only six paragraphs directly addressing women and
sports, and sometimes they are included as an aside. While Biegel tries to
draw some implications from the professional and intercollegiate venues for
K–12 settings regarding sports culture overall, I think this is a bit of a stretch.
In both collegiate and professional athletics, the issue involves legal adults
who are working either as direct employees (as in the case of profession-
als) or adults who are working as indirect employees (as in the case of
collegiate athletics). Sports purists might howl in protest that postsecondary
athletes are amateurs, but these student-athletes do receive significant tangi-
ble benefits in terms of scholarships and living expenses. Furthermore, there
is an ongoing concerted effort to unionize college athletics, recognizing that
such student-athletes are functioning as employees of the institutions for
which they play (see Levy, 2013). While athletic participation is voluntary in
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344 C. A. Lugg
all three venues, the key difference is that most public school athletes are
minors and therefore have a distinct set of legal protections afforded to them.
Furthermore, children are neither direct nor indirect employees of their re-
spective organizations. Consequently, it would have been more helpful if
Biegel had focused on K–12 extracurricular activities in general, and then
explored the differences between some competitive athletics (e.g., football)
and seemingly more queer-friendly activities (i.e., glee club).
This somewhat disappointing chapter is followed by the strongest. For
those not well versed on the violence and hatred transgender youth con-
front both at home and at school, this chapter is the reason to keep the
entire book close at hand. Biegel correctly notes that the legal environment
is fairly dismal for both transgender educators and students, though this
is slowly changing in those states that specifically protect gender identity.
That said, there are tangible steps that public schools officials should take,
regardless of legal environment, to better serve their transgender students.
These include diversifying the curriculum to cover the histories of and liter-
ature by trans people and modifying policies that acknowledge and respect
a transgender student’s embraced gender identity, including names and pro-
nouns, restrooms, locker-room accessibility, sports and physical education
programs, and school dress codes and clothing issues. Unfortunately, there
are no similar policy recommendations for serving transgender educators.
But this absence is also congruent with the dismal legal status of transgender
adults in the United States.
Overall, while Biegel’s text is an important addition to the research
literatures in law and education, it is an uneven addition. At times, it is won-
derfully provocative, particularly in the area of legal analysis. Furthermore,
this historian greatly appreciates the 65 pages of chatty endnotes. But at other
times, the book suffers the odd omission (for example, there is no mention
of the groundbreaking 1997 text by Karen Harbeck, Gay and Lesbian Ed-
ucators: Personal Freedoms, Public Constraints), contains gendered blind
spots (see especially the chapter on sports), and spouts just enough legalese
to invite slumber to the undercaffeinated. The failure to mention Harbeck’s
work is particularly striking, as she was the first U.S. legal scholar, educator,
and historian to carefully detail the historic legal conditions in which LGBT
public educators’ labor. It is a significant and troubling omission. That said,
The Right to Be Out is a good addition to the library of anyone working with
LGBT youth in a U.S. public school setting.
REFERENCES
Adelman, M., & Lugg, C. A. (2012). Public schools as workplaces: The queer gap
between “workplace equality” and “safe schools.” Law Journal for Social Justice,
3, 27–46.
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Book Review Essay 345
Biegel, S. (2010). The right to be out: Sexual orientation and gender identity in
America’s public schools. Minneapolis: University of Minnesota Press.
Boyd County High School Gay Straight Alliance v. Board of Education, 258 F. Supp.
2d 667 (E.D. Ky. 2003).
Eskridge, W. N. Jr. (2000). No promo homo: The sedimentation of antigay discourse
and the channeling effect of judicial review. New York University Law Review,
75, 1327–1411.
Fricke v. Lynch, 491 F. Supp. 381 (1980).
Garcetti v. Ceballos, 547 U.S. 410 (2006).
Harbeck, K. M. (1997). Gay and lesbian educators: Personal freedoms, public con-
straints. Malden, MA: Amethyst.
Levy, D. (2013, October 8). Can college athletes unionize? Bleacher Report. Retrieved
from http://bleacherreport.com/articles/1802827-can-college-athletes-unionize
Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969).
United States v. Windsor, 570 U.S. 133 (2013).
CONTRIBUTOR
Catherine A. Lugg is a Professor of Education in the Department of Theory,
Policy and Administration, Graduate School of Education, at Rutgers, the
State University of New Jersey. Her research interests include educational
politics and history, and the influences of social movements and political
ideology have on educational politics and policy.
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