“Straightening” the Law on "Ex-Gay" Speech

The so-called “ex-gays” are at it again, threatening publicly funded colleges and universities with lawsuits if they don’t promote the notion that lesbian, gay, bisexual and trangender (LGBT) people can be turned straight. Lambda Legal recently learned that Parents and Friends of Ex-Gays and Gays (PFOX) sent a letter to a university this spring, demanding the university feature its “ex-gay” propaganda on the university LGBT center’s website.

PFOX’s demands typically scramble cases concerning the First Amendment in ways that appear designed to create confusion—and then impose a tight “deadline” for response that may bully schools into doing something they don’t legally have to do—and which can ultimately disadvantage students. In response, Lambda Legal recently presented an informational program on First Amendment law to a consortium of directors of LGBT centers in higher education settings.

As we pointed out, an informed response to demands for placement requires understanding how the First Amendment functions in different contexts.

Examples help make the point: This April Lambda Legal filed a new federal case on behalf of students whose school administration refused to allow them to form a gay-straight alliance (GSA). The administration’s decision was based on the content of the students’ speech, or their viewpoint. Students wanted to talk about LGBT issues, and school officials said they thought some members of the community wouldn’t appreciate that topic. Our complaint in Pratt v. Indian River Central School District explained that the school can’t discriminate on that basis. Under the First Amendment, the Equal Access Act, and other relevant law, the school must give the LGBT group equal rights to express itself. In a first positive step, the school dropped its opposition to the GSA within a week.

It’s helpful also to note that last year we helped defend a comprehensive high school curriculum in Montgomery County, Maryland. PFOX attacked the curriculum, which featured medically sound information on sexual orientation and gender identity. The organization demanded to have so-called “ex-gay” materials featured in the curriculum. The school system refused. Our filings made clear that PFOX’s position was legally incorrect—the school did not have to feature PFOX’s point of view. We won.

Our successes in both contexts hinge on a core concept in First Amendment and expressive rights cases: the “public forum.” When the government—or in this case a publicly funded school or university—creates an opportunity for expression, it sets up a type of public forum. When a university creates a bulletin board for students to place notices or a system for creating student groups and clubs, it generally cannot discriminate against a particular student or group because it doesn’t endorse the group’s point of view. The forum has been created for discussion, and all viewpoints should be permitted equally (with very few, legally specified exceptions).

A school’s speech is an entirely different kettle of fish. The school is allowed to have a point of view. When it communicates—through its curriculum, administration, publications and even its LGBT support center—it is legally entitled to make independent choices about what it conveys. That’s why geography courses do not have to give equal time to flat-Earth theory.

In this case, who is communicating? Is this website a forum for everyone, or has the school created a vehicle for its own messages? That’s the core distinction. If a group (like PFOX) demands to have a channel for school speech feature its materials, but cites legal cases about the rights of student groups in a public forum, it is clearly using the wrong law. That’s not to say that a school can’t independently choose to educate students about opposing ideas: At least one school has reported that it placed “ex-gay” propaganda on a shelf labeled “anti-gay publications.” Such placement might be accompanied by materials from all of the leading medical, counseling and therapeutic organizations that, across the board, have determined trying to change sexual orientation is unnecessary—and can be harmful and even dangerous.

Professional analyses like the above (while not required in order for a school to choose a point of view) have convinced many institutional leaders that acceptance and support of students, regardless of sexual orientation and gender identity, is a core value of higher education. Accompanying that conviction is Lambda Legal’s advocacy on behalf of LGBT students and the professionals in schools who support them.