Balkinization  

Thursday, January 17, 2013

Gay-affirmative school-based interventions: Public health benefits and First Amendment concerns

Guest Blogger

Ilan H. Meyer



My research concerns public health issues related to minority health, in particular, the relationship of stigma, prejudice, and discrimination on the health of sexual minorities.   In 2011 I was called to testify at a hearing of the U.S. Commission on Civil Rights (USCCR) on peer-to-peer violence and bullying in schools.  Research in this area has been quite solid and shown consistent and robust findings:  lesbian, gay, bisexual, transgender, and questioning (LGBTQ) youth fare worse than heterosexual youth.   Compared with their heterosexual peers, LGBTQ youth experience more stress, including violence bullying and, related to this, worse health outcomes and academic performance.   Most public health professionals agree that LGBTQ youth can be helped if schools stem violence and bullying and, generally, improve the school environment—making it more friendly and accommodating for LGBTQ youth. 

At the USCCR hearing I was taken by surprise when invitees of the Republican members of the Commission opposed such recommended interventions on behalf of LGBTQ youth.  In particular, I was intrigued by concerns that efforts to improve the school environment for LGBTQ students, aimed at reducing stigma and prejudice, raised First Amendment concerns.  I was particularly struck by Professor Eugene Volokh’s testimony, which singled out one of my statement to the committee, saying “[O]ne of the things that [Meyer noted] is that one of the dangers to the mental health of gay students is anti-gay stigma and prejudice. I think that's probably right, but the consequence of that is that if you take that logic seriously, then again speech, whether on campus or off campus, that expresses and contributes to the stigma of prejudice would be punishable.”

As a public health researcher I have never seen such concerns voiced.  We, in public health, generally view efforts to reduce stigma, prejudice, and discrimination as desirable and even laudable; we don’t really discuss stigma as a conventional point of view and as protected speech.  But upon considering these issues, I came to realize that Volokh and others raise significant concerns.  After all, gay-affirmative interventions aimed at reducing stigma, by their nature, attempt to unsettle social arrangements and alter values and attitudes.  These values and attitudes are central to current public debate. 

I studied the issues with the help of Stuart Biegel, a law professor at UCLA who also gave a statement to the Commission on this topic, and Ronald Bayer, a public health professor at Columbia University who studies public health ethics.  In this process I came to believe that public health researchers and educators ought to attend to these First Amendment concerns.  Although some colleagues do not agree with me—they believe that reducing antigay stigma is an indubitable goal—I believe that First Amendment challenges raise interesting questions that do not always have easy answers.

I still believe that public health interventions to reduce stigma are laudable and that they are required to ensure the safety and well-being of LGBTQ kids.  I also came to realize that case law and future litigation will not provide enough guidelines to school administrators on how to promote a gay-affirmative environment while protecting First Amendment rights.  But I also came to realize that while there are challenges, there is no inherent conflict between providing a gay-affirmative environment that combats stigma and assuring First Amendment rights.  What we need are interventions that address stigma and prejudice and allow, and even encourage, free discussion and protected speech while assuring the dignity and safety of LGBTQ students.

Ilan H. Meyer is Williams Senior Scholar for Public Policy The Williams Institute UCLA School of Law. You can reach him by e-mail at meyer at law.ucla.edu


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