Does MA’s Bullying Law Require Schools to Recognize “Categories of Students, Including LGBTQ Students”?


There was great news last week for safe-schools and LGBT-equality advocates in Massachusetts, where the governor signed a measure strengthening the state’s anti-bullying law.

The many advocates who worked for the bill’s passage—including the organization Mass Equality and state Attorney General Martha Coakley—deserve wholehearted thanks and congratulations from those who believe in safe schools for all youth. Still, it’s worth pointing out an inaccuracy that appears in statements issued by the law’s supporters as well as in the media. Some advocates, journalists and bloggers have suggested that the law requires schools to single out specific groups, including LGBTQ students, for special protections. This is incorrect, though I recognize that the law may appear ambiguous on this point, at least at first glance.

Clarifying this issue may help prevent confusion among those who must work to implement the law; it may also help ensure that, moving forward, safe-schools advocates who favor inclusive policies don’t inadvertently feed into anti-LGBT talking points.

“Categories of Students, Including LGBTQ Students”?

In a press release lauding the bill’s passage, Mass Equality and other supporters say that the bill “enhances the state’s landmark 2010 anti-bullying law by requiring school districts to include in their bullying prevention plans recognition that certain categories of students, including LGBTQ students, are particularly vulnerable to bullying” (emphasis added). Earlier in the month, Massachusetts Attorney General Martha Coakley similarly stated that the law “requir[es] that school bullying prevention plans recognize that certain enumerated categories of students may be more vulnerable to becoming targets of bullying” (emphasis added).

Characterizations along these lines also appear in the media. Quoting language from press releases, The Rainbow Times and Towleroad wrote that the law requires schools “to include specific protections in their bullying prevention plan recognizing frequently targeted groups, including LGBT youth.”

"Enumeration" explained on school chalkboard
“Enumeration” in anti-bullying laws generally refers to the listing of traits or classifications (like race, sex, religion, sexual orientation, and gender identity), not the listing of groups or categories of people.

The problem here lies in the notion that the new law singles out any particular category or “categories” of students, like LGBTQ students, for special protection. While the law adds protections that are particularly important to LGBTQ youth, it doesn’t “enumerate” LGBTQ students or provide them more protection than it provides to others. Indeed, it does not even mention LGBTQ youth. Rather, it enumerates types of mistreatment—including, crucially, bullying based on a student’s actual or perceived sexual orientation or gender identity, as well as bullying based on the actual or perceived sexual orientation or gender identity of a person with whom the student associates. These protections apply equally to protect all students, including non-LGBT students who face bullying because they have an LGBT parent or friend, or who face harassment because other students mistakenly assume them to be gay.

As I’ve pointed out in other posts, the distinction I’m emphasizing here an applies in many contexts but frequently gets lost in the debate. Journalists and advocates on all sides of the issues tend to describe civil rights bills affecting LGBT people—including bills covering bullying, employment and hate crimes—as if the legislation specifically singled out, or “enumerated,” groups of people entitled to protection (like “LGBTQ students”), even though that’s not how the legislation generally works. LGBT civil rights bills almost always enumerate types of traits or classifications, not types of people.

This holds true for laws that journalists and LGBT-equality advocates sometimes describe as “fully enumerated” or “LGBT inclusive.” Minnesota, for example, recently enacted an anti-bullying measure widely described (and rightfully applauded) as “LGBT inclusive.” But that law, like Massachusetts’ new law, does not specifically mention LGBT students; instead, it protects all students from bullying, including bullying based on “actual or perceived . . . sexual orientation” and “gender identity and expression” (as well as race, sex, religion, and other classifications).

Is Massachusetts’ Anti-Bullying Law Different?

All that said, Massachusetts’ new law is worded a bit differently than most other anti-bullying laws, and on first glance it may seem that it does, in fact, enumerate “categories” of students. The law says, for example, that anti-bullying plans developed by schools must “recognize that certain students may be more vulnerable to becoming a target of bullying or harassment” and that the plans must also “include the specific steps” that schools will take to support these “vulnerable students.”

Click here to read the full text of the legislation.

A closer look reveals, however, that while the law purports to require special protections for “certain students” or “vulnerable students,” it defines this group of specially protected students so broadly that it effectively includes everyone—exactly as it should. The relevant language provides,

Each [school’s anti-bullying] plan shall recognize that certain students may be more vulnerable to becoming a target of bullying or harassment based on actual or perceived differentiating characteristics, including race, color, religion, ancestry, national origin, sex, socioeconomic status, homelessness, academic status, gender identity or expression, physical appearance, pregnant or parenting status, sexual orientation, mental, physical, developmental or sensory disability or by association with a person who has or is perceived to have 1 or more of these characteristics.

This includes all students. Absolutely any student, after all, can become a “target of bullying or harassment” based on his or her “actual or perceived differentiating characteristics,” including those enumerated in the Act. No students are left unprotected or even less protected by this law.

In sum, reading the statute as a whole, it becomes clear that the Massachusetts law, despite some arguably ambiguous or confusing language, is similar to laws of many other states (including the law in Minnesota) that protect all youth, not just LGBTQ youth, from bullying and harassment, including bullying and harassment based on actual or perceived sexual orientation or gender identity.

Of course, by expressly enumerating “sexual orientation” and “gender identity,” the laws provide protections that are vitally important to LGBTQ youth. My argument here doesn’t suggest otherwise. But none of this means that the law enumerates “LGBTQ students.” LGBTQ youth will derive special benefit from the law because they are more likely to be victims of bullying (including the types of bullying enumerated in the law)—not because the law itself singles them out for special recognition or protection that other students do not receive.

Getting the Details Right: Why It Matters

Some readers may think I’m being a bit (or very!) nit-picky here. But I find it important to emphasize the distinction between enumerating groups and enumerating traits or classifications. As I’ve argued before, if advocates and the media (inaccurately) describe anti-bullying laws as if they singled out particular “groups” or “categories of students” for special protections, then they not only misstate the facts, but they also needlessly play into the hands of opponents of LGBT-equality laws, who typically portray the laws as providing “special rights” to certain privileged groups, or who claim that laws with enumeration are flawed because they supposedly don’t protect “every student.” By clarifying that anti-bullying policies enumerating “sexual orientation” and “gender identity” protect all students, advocates and journalists can avoid bolstering the misleading talking points offered by opponents of LGBT equality.

MK

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Related posts explaining enumeration & so-called “protected classes” & “special rights”:

Additional related posts:


*The Martha Coakley photo, by Fogster at en.wikipedia, appears here under a Creative Commons Attribution 3.0 Unported license.

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