[November 15 Update: Jeydon has prevailed, and will appear in a tuxedo in the yearbook. The original 11/14 post about Jeydon and the SPLC continues below.]
A dispute unfolding in Texas serves as another important reminder that the federal Constitution and federal civil rights statutes, if properly applied and enforced, protect public school students from anti-transgender discrimination regardless of what state and local laws might provide.
Yesterday, the Southern Poverty Law Center (SPLC) sent a demand letter to the school board in La Feria, Texas, on behalf of a transgender student, Jeydon Loredo, who was denied permission to wear a tuxedo in a yearbook photograph. The district’s superintendent, Rey Villarreal, told Loredo’s mother that the yearbook would include her son’s picture only if he wore traditionally feminine clothing, like a “blouse or drape.”
The organization All Out has posted this video on YouTube, calling on the International Olympic Committee to “honor its principles and condemn discrimination.” The video’s message refers primarily to the anti-gay censorship law in Russia, which bans “propaganda of nontraditional sexual relations” among minors. The law is widely understood to ban any LGBT-supportive expression in places where children may be present, which is basically any public place—and schools, of course. Russia will host the Olympics in Sochi next year.
As I’ve argued in other posts, Russia’s “propaganda” law purportedly aims to protect precisely the same group that it most harms: youth. The law has already encouraged violent vigilantism targeting LGBT teenagers.
The European Court of Human Rights condemned Russia’s suppression of LGBT-supportive speech in a case involving LGBT demonstrations a few years ago, but that court ruling appears to have had little lasting effect. (I discussed that ruling in some detail in a 2012 post, which also highlighted Madonna’s pro-gay advocacy in St. Petersburg.)
Missouri’s Rutherford County School Board is refusing to allow an LGBT-supportive poster back on the wall at a local school. Administrators recently required a teacher to take the poster down after a parent complained.
The poster, created by the Gay, Lesbian & Straight Education Network, reads: “This is a safe and inclusive space for lesbian, gay, bisexual and transgender students and their allies. All students deserve a safe and welcoming school environment.” It also includes some statistics about LGBT youth, noting, for instance, that 9 out of 10 LGBT youth face harassment at school based on their sexual orientation, and that many LGBT youth do not feel safe at school. You can view the poster here.
Rutherford school officials and their representatives have offered various, shifting excuses for the anti-LGBT censorship, all of them terribly weak.
The American journalist had been invited to speak on Russian television about Bradley Manning, but he instead took the opportunity to boldly speak up for LGBT human rights.
“Being here on a Kremlin-funded propaganda network,” Kirchick says, “I’m going to wear my gay pride suspenders and I’m going to speak out against the horrific, anti-gay legislation that Vladimir Putin has signed into law.”
While it’s not surprising that the station booted Kirchick from the program, it is a bit surprising (and fantastic) that the hosts let him go on as long as he did.
Do Russian LGBT-equality advocates support a boycott of the 2014 Winter Olympics in Sochi?
Some reports say yes: John Aravosis writes on America Blog that a group of 23 Russian activists have endorsed an international boycott of Russian products (including Russian vodka), as well as a boycott of the 2014 Olympics in Sochi, based on Russia’s new anti-gay laws and increasing hostility to the basic human rights of LGBT people. Towleroad has posted a similar report.
As I tweeted yesterday, however, prominent gay Russian activist Nikolai Alexeyev recently decided against an Olympics boycott, and is instead organizing a pride event to coincide with the Sochi games.
Welcome to the LGBT Youth News Roundup for July 19, 2013!
Here are some of the latest developments:
Law and policy:
• The Washington Blade provides an update on the federal Student Non-Discrimination Act: “House lawmakers spoke out this week in favor of legislation aimed at prohibiting the bullying and harassment of LGBT students as Republican lawmakers refused a vote on such a measure as part of an education reform bill.”
• California Governor Jerry Brown (pictured above) has yet to sign (or veto) a bill that would clarify protections for transgender students.
• Oregon school districts in Salem-Keizer and Lake Oswego have taken steps to conform their anti-bullying policies to the Oregon Safe Schools Act.
• The Montana Board of Regents has voted to broaden the state university system’s anti-discrimination policy to include sexual orientation and gender identity.
• In a heated debate over a non-discrimination policy, an Orleans Parish School Board member claimed there is “no such thing” as the separation of church and state.
Even after an embarrassing and costly legal defeat this past spring in a lawsuit brought by the American Civil Liberties Union of Florida, the Lake County School District still hasn’t adopted a forward-looking policy to protect the equal rights and safety of lesbian, gay, bisexual and transgender students and their allies.
The district’s school board was expected this week to address a proposed policy affecting the right of middle school students to form gay-straight alliances (GSAs). Instead, the board yet again delayed action. The board will (supposedly) raise the issue at an August meeting before the new school year begins.
The last several weeks have brought a whirlwind of LGBT news, with major developments coming not just from the Supreme Court, but also from several states (including Colorado and New Jersey) and from Russia. Here are just a few highlights of the many stories about and affecting youth.
We’ve got three updates this weekend about gay-straight alliances and safe-schools efforts in Texas and Florida, including information on how you can speak out for LGBT youth and their allies in the ongoing controversy in Lake County.
“I’m really frustrated that we’ve reached this point, but we can’t wait any longer,” stated Silberstein, an 8th-grader at Carver Middle School. “The bullying at my school is really bad, and I don’t want to have another school year go by without kids feeling like there’s a safe place where they can be themselves. But the school board keeps trying to stop us.”
A 2012 message from federal Secretary of Education Arne Duncan. The Lake County School Board should listen.
A member of Florida’s Lake County School Board questioned the sexual orientation of a fourteen-year-old student in his district in an email sent last Friday.
The Board member’s disturbing comment came in a written exchange with musician, blogger and LGBT-youth advocate Katy Bourne, who had sent an open letter to two members of the Lake County School Board criticizing their efforts to restrict the right of middle school students to form gay-straight alliances (GSAs). I thank Ms. Bourne for bringing the comment to my attention.
As other posts on LGBT Youth Allies have discussed at length (see below), the Lake County School Board has thwarted eighth-grader Bayli Silberstein’s attempt to form a gay-straight alliance at a middle school in the district. The American Civil Liberties Union of Florida has been advocating on Bayli’s behalf.
Though Florida’s Lake County School Board has effectively blocked a proposed gay-straight alliance (GSA) at a local middle school, a member of the Board tells me that “[t]he board has not blocked the GSA.”
The denial is only one of several perplexing statements made by the Board member in a series of three emails sent to me late last week. (Though the Board member consented to the disclosure of his name and emails, I’m not revealing his identity in this post. I’ll refer to him instead as “S.B.M.” or “School Board Member.” See the end of the post to learn more about that.)
The Supreme Court has long recognized high school and middle school students’ right to free speech.
Under the federal Equal Access Act, public high schools must allow students to form gay-straight alliances (GSAs) if the schools receive federal funds and allow any other extracurricular clubs on campus. The First Amendment provides similar protections.
But as students in younger grades increasingly speak out for LGBT equality, a new issue arises: Do public middle school students have a legal right to form GSAs too?
Courts haven’t directly addressed the issue, making it difficult to give a simple answer. Still, for most students, the answer is likely yes. And regardless of what the law provides, middle schools should allow GSAs.
Nevertheless, forming a GSA can be a struggle for middle school students.
Fourteen-year-old Bayli Silberstein’s ordeal in Florida provides the latest example.
Under the proposed policy change, which members of the National Council will vote on tomorrow (May 23rd), the BSA would replace its longstanding ban on openly gay Scouts with a policy of non-discrimination based on sexual orientation. “No youth,” the proposed policy reads, “may be denied membership in the Boy Scouts of America on the basis of sexual orientation or preference alone.”
The proposal would not, however, change the national ban on openly gay adult members and Scoutmasters. Under the proposed policy, in other words, the BSA would prohibit sexual-orientation discrimination against youth members and require sexual-orientation discrimination against adults.
I agree with those who call the proposed policy a major step forward for the organization, and I hope the National Council approves it. On the other hand, the proposal has deep flaws; most obviously, the newly proposed policy would continue to exclude gay adults. And by excluding gay adults, the Scouts would continue to stigmatize all gay people, including the gay youth that the proposed policy would take steps to protect. For further exploration of these tensions and difficulties, see the questions below.
Click on any question to jump to the answer below.
What is the BSA’s current stance on gay Scouts and leaders?
The BSA’s official position is that while it does not “proactively inquire about the sexual orientation of employees, volunteers, or members,” it forbids membership to “individuals who are open or avowed homosexuals or who engage in behavior that would become a distraction to the mission of the BSA.” This includes both youth and adults.
Why doesn’t the BSA allow openly gay people to be Scouts or Scout leaders?
The Scout Oath & Law require that Scouts be “morally straight” and “clean.” As the Supreme Court explained in a 2000 case, the BSA believes that “engaging in homosexual conduct is contrary to being ‘morally straight’ and ‘clean.’”
The Scouts have also stated that openly gay adults do not provide appropriate role models.
Do the Boy Scouts have a legal right to exclude gay people from leadership and membership positions?
In the 2000 case noted above, the Supreme Court held, on a vote of 5-4, that the BSA has a constitutional right to exclude openly gay adults from leadership positions. The make-up of the Court has changed since the 2000 case, but a majority of Justices would probably still rule in a similar way.
Though the 2000 Supreme Court case on the issue only involved an adult (who had been a Scoutmaster), most experts agree that the Boy Scouts’ constitutional right to exclude openly gay people applies to youth members as well as adult members.
What about anti-discrimination laws? Don’t they apply to the Scouts?
Under the Supreme Court’s 2000 ruling, anti-discrimination laws do not apply to the Scouts, at least not with respect to their exclusion of openly gay Scoutmasters (and probably not with respect to openly gay youth members either).
In the 2000 court case, the New Jersey Supreme Court had concluded that sexual-orientation discrimination by the Scouts against an openly gay assistant Scoutmaster, James Dale, violated New Jersey’s law prohibiting discrimination in public accommodations. The Supreme Court reversed the New Jersey court; the Supreme Court held that applying the state anti-discrimination law to the BSA violated the BSA’s right to “expressive association.” This right to “expressive association” forms part of the Constitution’s guarantee of free speech.
Do the Boy Scouts have other policies or positions related to sexuality, sexual orientation, or sexual conduct?
Yes, the Scouts take various positions regarding sex, sexuality and sexual orientation, but they also routinely deny that they do so.
For example, the Scouts often say that they do not have an “agenda” when it comes to sexual orientation, but the organization actually takes a firm stance when it comes to gay sexual orientation: Openly gay people may not be members. The Scouts have defended this anti-gay policy all the way to the Supreme Court, and they continue to defend the policy in litigation. In light of this, it’s difficult to understand why the Scouts claim not to have an “agenda” on the issue.
BSA leaders have also claimed that the organization does not “endeavor to teach about sex.” But this is not true either.
First of all, the BSA has taken a very public position on gaysexual conduct, calling it immoral and unclean. (See above.)
Second, even when it comes to heterosexual conduct, the Scouts most certainly “endeavor to teach about sex.” The Scouts emphasized this point to the Supreme Court in 2000, telling the Court in a legal brief that
[w]ith respect to sexual behavior, Boy Scouting “espouses family values” based on marriage and fatherhood. The Boy Scout Handbook describes how a young man attains “[t]rue manliness” by accepting his “responsibility to women” [and] his “responsibility to children” when he marries and has a family . . . . “Abstinence until marriage,” the Handbook counsels, “is a very wise course of action.”
The Scouts’ brief to the Court also stated:
If a boy is in doubt about how to conduct himself, the Boy Scout Handbook tells him that he may look to his Scoutmaster . . . . “If you have questions about growing up, about relationships, sex, or making good decisions, ask. Talk with your . . . Scoutmaster.” In turn, the Scoutmaster Handbook advises adult leaders to be responsive: “Be accepting of their concerns about sex. Be very open and clear when talking with them.”
The BSA therefore does take a position on (and teach about) about sex. (I make similar points in a post from last summer, which you can access here.)
However, because the BSA often denies that it takes a stance on issues of sex and sexuality, it is difficult to provide a definitive summary of its positions.
The newly proposed policy, which the Scout’s Executive Committee supports unanimously, provides that “[n]o youth may be denied membership in the Boy Scouts of America on the basis of sexual orientation or preference alone.” You can read the full text of the proposal by scrolling to the end of the document available here.
The proposed change would not affect the policy for adults. The BSA would therefore still forbid membership to adults “who are open or avowed homosexuals or who engage in behavior that would become a distraction to the mission of the BSA.”
When, if ever, will the changes go into effect? (Updated 5/22/2013)
In order for the new policy to take effect, the Executive Committee’s proposed policy resolution must be approved by a majority of the BSA’s National Council members, who will vote on the issue tomorrow, May 23rd. There are about 1,400 voting members of the National Council.
If the proposal is approved, the new policy will go into effect on January 1, 2014.
Would the new policy actually change anything? (Updated 5/22/2013)
Yes. Openly gay youth members would no longer be excluded from membership.
Note that when I first commented on this issue in April, I wrote:
On one possible reading of the current and proposed policies, nothing would change at all. I say this because the proposed policy only says that youth won’t be excluded based on their “sexual orientation or preference alone” (emphasis added). This is arguably consistent with the current policy, which forbids membership only (in theory) to “open or avowed” gays.
In other words, one might say that kicking a young man out of the BSA for being openly gay wouldn’t violate the proposed policy, just like it wouldn’t violate the current policy, because the dismissal wouldn’t be based on sexual orientation “alone”; it would instead be based on the youth’s decision to be open about his sexual orientation. Under this reading, the new policy changes nothing.
Even when I wrote the above, however, I also expressed doubt that the Scouts would actually exclude openly gay youth under the new policy.
It has since become even more clear that under the national leadership’s understanding of the proposed policy, Scouts would not exclude openly gay youth if the policy is approved. The Scouts’ website now states that “if this resolution is passed, no youth may be denied membership in the Boy Scouts of America on the basis of stating their sexual orientation alone” (emphasis added).
Why does the newly proposed policy include the word “alone”? (Updated 5/22/2013)
The newly proposed policy provides that youth shall not be denied membership based on “sexual orientation or preference alone” (emphasis added).
Why include the word “alone”? It’s unclear.
One possibility is that the BSA still intends to discriminate against openly gay youth. But as I discuss above, the Scouts’ leaders have now clarified that this is not their understanding of the newly proposed policy.
Still, including the word “alone” suggests that the BSA is trying to maintain some wiggle room in the policy so it can continue to exclude or discriminate against gay youth under some circumstances, even though it wouldn’t discriminate based on sexual orientation “alone.”
What sort of ongoing discrimination might the leadership envision?
Maybe the BSA still intends to discriminate against gay youth if they are sexually active. The BSA has emphasized in recent statements, for example, that sexual activity among youth of Scouting age is unacceptable.
The problem with this interpretation is that the BSA’s recent statements condemning sexual conduct among youth do not single out homosexual sexual conduct. Instead, the BSA states that “any sexual conduct, whether homosexual or heterosexual, by youth of Scouting age is contrary to the virtues of Scouting.” It would be strange to rely on this policy against “homosexual or heterosexual” conduct to justify discrimination against sexually active gay youth only.
So we’re left with the same question: How do we interpret the word “alone” in the proposed policy?
Perhaps the BSA still wants the freedom to prohibit young people from speaking out in favor of gay rights, including the rights of gay Scoutmasters. Under this reading of the proposed policy, a local chapter could dismiss a young gay Scout based on his pro-gay activism, because the dismissal wouldn’t be based on sexual orientation “alone,” but rather based on a combination of sexual orientation and activism.
This interpretation seems consistent with various BSA statements opposing activism within the BSA ranks. The BSA has stated that “the Boy Scouts of America is not the place to resolve divergent viewpoints in society,” adding that “if same-sex attraction is going to be introduced or discussed, it should be with parents, caregivers, or spiritual advisers, at the appropriate time and in the right setting—but outside of the Scouting program.” The proposed resolution, moreover, says that members of the organization may not “use Scouting to promote or advance any social or political position or agenda.”
Upon closer analysis, however, this explanation for including the word “alone” doesn’t really make sense either. If the Scouts really want to cut off debate about gay rights within the organization (a bad idea, if you ask me), then they can pass a resolution directly addressing that issue, without focusing on the sexual orientation of the activist who happens to be speaking out on the issue. If, on the other hand, the BSA does care about the sexual orientation of the activist, it’s unclear why it is proposing to prohibit sexual-orientation discrimination in the first place. Indeed, if the BSA distinguishes between one pro-gay activist and another based solely on the activists’ sexual orientation, then it is discriminating based on sexual orientation “alone,” in violation of the proposed policy.
In the end, therefore, we’re left without any clear rationale for including the word “alone” in the policy. The BSA needs to explain itself on this issue—or even better, amend the proposal to cut the word out.
Under the new policy, would the BSA still maintain that “homosexual conduct is contrary to being ‘morally straight’ and ‘clean’”? (Updated 5/22/2013)
The BSA has not been clear on this issue either.
As one of the answers above explains, the current policy against openly gay youth and adult members is based primarily on the organization’s view that “homosexual conduct” is contrary to the Scout Oath and Law—and more specifically, the view that homosexual conduct violates the Scout Oath and Law’s requirements that Scouts be “morally straight” and “clean.”
It would be logical for the Scouts to modify their interpretation of what it means to be “morally straight” and “clean” if they are to welcome gay youth into their ranks. Even if youth, whether straight or gay or bi, are not supposed to be sexually active while they are still of Scouting age (as the proposed resolution makes clear), the BSA will be stigmatizing and confusing its gay youth members if it tells them that any future sexual relationships they have as adults would be considered immoral and unclean under Scout policy. It seems strange, to say the least, to enact a sexual-orientation non-discrimination policy for youth while continuing to stigmatize them in this way.
The proposed resolution doesn’t comment on this issue, however. Instead, it simply reaffirms the importance of the Scout Oath and Law.
For example, while the resolution provides that youth may not be denied membership based on “sexual orientation or preference alone,” it reiterates that youth members must “subscribe to and abide by the values expressed in the Scout Oath and Scout Law” (emphasis added).The resolution also states that “the values set forth in the Scout Oath and Law are fundamental to the BSA and central to teaching young people to make better choices over their lifetimes.”
The BSA needs to clarify whether it stands by its prior statements about the supposed immorality and uncleanliness of homosexual conduct.
If an openly gay youth member later wants to become an adult member and leader, would the new policy allow that?
According to the BSA’s recent statements discussing the proposed policy change, “[w]hen members are no longer a youth participant, they must meet the requirements of our adult standards.” Those “adult standards” would still bar openly gay people, even under the newly proposed policy.
Why would the Scouts deny membership (and leadership positions) to gay adults while allowing gay youth members? (Updated 5/22/2013)
The BSA leadership has not addressed the rationale for the distinction in any clear or direct way.
One BSA statement attempts to answer this question as follows:
[T]his issue remains among the most complex and challenging issues facing the BSA and society today. Even with the wide range of input, it was extremely difficult to accurately quantify the potential impact of maintaining or changing the current policy. While perspectives and opinions vary significantly, parents, adults in the Scouting community, and teens alike tend to agree that youth should not be denied the benefits of Scouting.
Based on this statement and my overall reading of the various documents made publicly available, it seems that the BSA leadership is simply trying to propose a policy that Scouting members and families will accept. Because the leadership’s survey of members and other research on the issue revealed opposition to gay Scoutmasters while showing support for gay youth, the leadership decided to propose a different rule for adults and youth.
If I’m right, then there’s really no principled reason for the distinction drawn by the leadership; the BSA is simply trying to please everyone in the Scouting community, even if that effort results in an incoherent policy. This is problematic, needless to say. As Richard Socarides remarked in the New Yorker, “basing the new rule on survey research hardly seems consistent with fostering ethical and moral decision-making.”
Sadly, the BSA leadership may also still believe in the ugly, dangerous and scientifically discredited stereotype that gay adults pose a threat to children. The proposed resolution, for example, emphasizes the need “to protect youth and provide for their privacy.”
Materials released by the BSA regarding the proposed policy change indicate that the organization does not endorse the view that gay adults pose a threat to children. One expert quoted by the organization states, for example, that there is “no evidence to suggest that homosexuals are more likely to molest children than heterosexuals.” Another expert quoted in the materials discusses research on the question of whether or how associating with gay adults affects children; the expert explains that the “clear conclusion from this research” is that associating with gay adults appears to have “no effects on children’s adjustment, mental health, or sexual orientation.”
On its website, moreover, the BSA now states, “To be clear, the BSA makes no connection between the sexual abuse or victimization of a child and homosexuality. The BSA takes strong exception to this assertion. Some of the nation’s leading experts reinforce this position.”
In light of these statements, how can we understand the BSA’s proposal to continue excluding openly gay adults from membership and leadership positions? As explained above, the most likely explanation is simply that adults affiliated with the organization oppose lifting the ban on openly gay adult members. The BSA’s leadership is unwilling to challenge this opposition, even though many who support the discrimination justify their position with the same ugly stereotypes that were rejected by the BSA’s experts.
Why does the Boy Scouts’ policy refer to “behavior that would become a distraction to the mission of the BSA”? What does this have to do with gay people?
Under the new policy, the Boy Scouts would still forbid membership to openly gay adults and to adults “who engage in behavior that would become a distraction to the mission of the BSA.”
The BSA has not clarified what behavior counts as a “distraction”; nor has it explained why this policy on “distraction[s]” forms part of a policy on sexual orientation.
One possible explanation for the “distraction” language is that the BSA wants to protect its freedom to revoke the membership of any adult—of any sexual orientation—who advocates too much or too loudly for an elimination of the anti-gay adult-membership policy. This explanation is consistent with other parts of the resolution; for example, the resolution states that no member may “use Scouting to promote or advance any social or political position or agenda.”
Would the Boy Scouts’ new policy receive the same constitutional protection?
The Supreme Court has held that the BSA has a constitutional right to exclude openly gay people from leadership positions.
Some commentators speculate that the proposed policy puts that constitutional protection at risk. They think that because the Scouts are softening their stance on homosexuality when it comes to gay youth, they’re introducing inconsistencies in the policy that make it difficult to justify discrimination against adults in court.
They may be right, but I’m inclined to think that the new policy would still get constitutional protection (even if it shouldn’t).
The Supreme Court’s decision on this issue in 2000 was very deferential to the Scouts, emphasizing that the Scouts not only had a right to define their own message about homosexuality, but that they also had a right to decide what sort of membership policy would best protect their message. “As we give deference to an association’s assertions regarding the nature of its expression,” the majority wrote, “we must also give deference to an association’s view of what would impair its expression.” In another passage, the majority commented that “it is not the role of the courts to reject a group’s expressed values because they disagree with those values or find them internally inconsistent” (emphasis added). If the Court sticks to this analysis, it would probably hold that the new policy is entitled to First Amendment protection, even if the policy is flawed or inconsistent.
If I’m right, the best way to undo the Scout’s still-discriminatory policies would be through public education and advocacy, not lawsuits.
The Scouts say they don’t have an agenda when it comes to sexual orientation. Will this change?
The BSA’s claim that it doesn’t have an “agenda” when it comes to sexual orientation is hard to take seriously, as explained above. Approval of the new policy wouldn’t change the fact that the Scouts have a policy (and agenda) when it comes to adult sexual orientation, since the Scouts would still deny membership to adults who are openly gay.
Would the new policy change the Boy Scouts’ other positions regarding sexuality or sexual conduct?
As discussed above, the Scouts have not been direct or straightforward with the public when it comes to their teachings on sexuality and sexual conduct. Though they clearly take a position on various sexuality-related issues, they also deny doing so. This makes it difficult to assess whether the new policy would change anything.
It’s possible that the Scouts will now take a stricter stance against sexual conduct among youth. The proposed policy resolution states, for instance, that “Scouting is a youth program, and any sexual conduct, whether homosexual or heterosexual, by youth of Scouting age is contrary to the virtues of Scouting.” This is much more forceful than the statements that appear in the Scout Handbook, which advise that waiting until marriage to have sex “is a wise course of action.” (Incidentally, the Scouts’ recent statements condemning sexual conduct “by youth of Scouting age” seem particularly strict as applied to youth in the Venturing program, who may be up to 20 years old.)
But again, given the BSA’s inconsistencies in discussing its positions on sexuality and sexual conduct, it’s hard to know for sure what its future position will be.
Will the Boy Scouts still require members to believe in God?
The proposed policy resolution states that the “the Scout Oath begins with duty to God and the Scout Law ends with a Scout’s obligation to be reverent, and that will always remain a core value of the Boy Scouts of America.” It also states that “[m]embership in any program of the Boy Scouts of America requires the youth member to … subscribe to and abide by the precepts of the Declaration of Religious Principle (duty to God).”
(Click to jump back to the list of questions.)
Additional Questions (added 5/22/2013)
Does the proposed policy change contradict or undermine the Supreme Court’s 2000 ruling?
Some opponents of the proposed policy change have emphasized (correctly) that the BSA is a “private organization” and have suggested (incorrectly) that the proposal to allow openly gay youth members would somehow undermine the organization’s rights as a private organization.
The Supreme Court ruled in 2000 that the BSA’s right to “expressive association” under the Constitution’s First Amendment encompassed a right to discriminate against openly gay people, at least in some circumstances. The Supreme Court did not, however, rule that the Scouts must or should exclude openly gay people. On the contrary, the Court’s central holding was that the decision was not one for courts or other government actors to make.
The Court’s majority opinion went out of its way to avoid expressing an opinion on the wisdom of the BSA’s policy or underlying views on homosexuality, explaining, “We are not, as we must not be, guided by our views of whether the Boy Scouts’ teachings with respect to homosexual conduct are right or wrong.”
A BSA-approved change to BSA policies, therefore, would not in any way contradict or undermine the Supreme Court’s 2000 ruling.
Would allowing openly gay Scouts inject sex, sexuality and politics into Scouting?
One of the most frequent talking points used by opponents of the policy change is that allowing openly gay members—or even debating the idea would—inject “sex and politics” into Scouting.
In some sense, the claim has it precisely backwards: The current policy unnecessarily makes an issue of sexuality (and injects politics into Scouting) by requiring discrimination against Scouts based on sexual orientation. A policy that makes sexual orientation irrelevant to Scouting would better serve the goal of keeping sexuality (and politics) out of the organization.
The argument that allowing openly gay people into Scouting would somehow “sexualize” the Scouting experience also overlooks the fact that Scouts, like everyone else in the world, are routinely exposed to heterosexual orientation, which forms a visible part of our everyday lives. And if we don’t believe that acknowledgments of sexual orientation are unduly “sexual” or “political” when they involve heterosexuality, we shouldn’t deem equivalent acknowledgments of homosexuality to be unduly “sexual” or “political.”
Consider the following, for example: If one Scout mentions to another that he expects to marry someday, must he avoid mentioning the expected gender of his future spouse? Would saying that he expects to marry or have a romantic relationship with a woman improperly inject sex, sexuality and politics into the Scouting experience?
Of course not. Again, nobody believes that acknowledging heterosexuality or heterosexual relationships is improper. Gay people seeking inclusion in the BSA wish to be held to the same standard. Creating different and discriminatory standards for gay people unnecessarily makes a political issue out of sexual orientation.
The “sex and politics” talking point also insinuates, incorrectly, that the newly proposed policy would condone or encourage sexual conduct among youth. The proposed resolution emphasizes, however, that sexual conduct, whether heterosexual or homosexual, is not appropriate for youth of Scouting age.
Finally, those who would ban openly gay Scouts in order to keep “sex and politics” out of Scouting fail to realize (or to acknowledge) that the Scout Handbook has for a long time directly addressed both sex and politics.
Chapter 2 of the Scout Handbook, for example, is called Citizenship, and it quite explicitly encourages Scouts to be engaged in civic and political matters: “A strong America exists,” the Handbook explains, “only if its citizens are informed.” The Handbook advises Scouts to “[l]earn about current issues and how your representatives are making decisions for you.” The same chapter encourages Scouts to visit with elected officials about issues that concern them.
The Handbook also contains a short section called “Sexual Responsibility,” which tells Scouts, among other things, that “[a]n understanding of wholesome sexual behavior can bring lifelong happiness.”
Do those who claim to oppose “sex and politics” in Scouting advocate deleting these sections of the Handbook? Why haven’t they said so?
Do current Scouts, parents, chartered organizations and other stakeholders favor or oppose the proposed change?
While views on the issue vary widely within the Scouting community, opposition to discrimination has risen substantially in recent years. The BSA’s research reveals, for example, that just three years ago, “parents supported the current BSA policy by a wide margin—58 percent to 29 percent,” whereas today, “parents oppose the policy by a 45 percent to 42 percent margin.”
Younger members of the Scouting community are also divided on the issue, though support for change is generally greater among youth members than it is among adults. About 57 percent of current Boy Scouts and Venturers oppose the current discriminatory policy.
When members of the Scouting community were presented with specific factual scenarios involving discrimination against gay Scouts, they were more likely to oppose discrimination. The BSA found, for example, that “overwhelming majorities of parents, teens, and adults in the Scouting community strongly agree that it would be unacceptable to deny an openly gay Scout an Eagle Scout Award solely because of his sexual orientation.” The BSA has pointed to this finding as “critical to the development of a resolution” regarding the new policy.
With respect to chartered organizations, the BSA’s research shows that organizations involved in Scouting tend to be particularly concerned with the possibility of gay adults in the organization, and less concerned with the presence of gay youth. “A change in the membership policy specific to youth only,” the BSA explains, “would be consistent with the religious beliefs of the BSA’s major chartered organizations.” For information about the position of the Church of Jesus Christ of Latter-day Saints, see the next question, below.
What is the position of the Church of Jesus Christ of Latter-day Saints?
On April 25, 2013, the Church of Jesus Christ of Latter-day Saints, which is the BSA’s largest chartered organization, released an ambiguous statement on the proposed policy change. Many people have interpreted the statement as an endorsement of the proposal to allow gay youth in the organization.
The statement, available in full at this link, reads in part:
The current BSA proposal [which would allow openly gay youth members] constructively addresses a number of important issues that have been part of the on-going dialogue including consistent standards for all BSA partners, recognition that Scouting exists to serve and benefit youth rather than Scout leaders, a single standard of moral purity for youth in the program, and a renewed emphasis for Scouts to honor their duty to God.
The Church emphasizes, however, that it “has not launched any campaign either to effect or prevent a policy change.” Its statement expresses gratitude for the BSA’s “careful consideration” of the issues and for the “positive things contained in this current proposal.”
What does the broader public think about gays in Scouting?
A recent Washington Post-ABC poll found that “63 percent of Americans support allowing gay scouts,” and that “the public opposes the plan to continue to ban gay adults from Boy Scout leadership by a 56 to 39 percent margin.” The latter finding differs from the results of a survey by USA Today/Gallup last year; in that poll, only 42 percent favored allowing openly gay adults to be Scout leaders.
When the BSA conducted its own research, it found that 57% of “general population teens” opposed the current policy that excludes openly gay people. After poll respondents read through several scenarios involving applications of the current policy, the percentage opposed to the current policy rose slightly, to 61%.
Best wishes to students across the country and world as they observe the Day of Silence today.
Among those participating is Lambda Legal client Maverick Couch. Last year, after Maverick’s Ohio school prohibited him from wearing a t-shirt that said “Jesus Is Not a Homophobe,” Lambda Legal brought a free-speech suit on Maverick’s behalf.
Lambda Legal won the case when the school district and principal agreed to a court judgment affirming Maverick’s right to wear the shirt on any day he chooses. The court also awarded $20,000 for damages, costs, and attorney’s fees.