Background

The right to education without discrimination is a universally recognized human right. In 2001, the first UN Special Rapporteur on the right to education articulated governments’ obligations regarding education by developing the 4A’s framework, which outlines the essential criteria that States must meet to ensure the right to education: availability, acceptability, adaptability, and accessibility and to which the current Rapporteur has added “accountability”. Laws, policies and practices that discriminate on the basis of SOGI perpetuate educational environments that are not available to all, adaptable to evolving needs, acceptable, or accessible for LGBT students.

Education is not only a human right, but also an essential tool for the realization of other human rights. It is the “primary vehicle by which economically and socially marginalized adults and children can lift themselves out of poverty and obtain the means to participate fully in their communities.”^[1.1] Often, lack of protections and restrictive educational environments for LGBT children lead to limited life opportunities for them in adulthood. This report is motivated by the concern that the failures of States to mitigate education disparities faced by SOGI-diverse youth can limit students’ ability to grow into adults with access to equal opportunities for success. Early intervention is indispensable to ensuring the realization and enjoyment of all human rights for LGBT children and adults.

Right to be free from discrimination in educational settings

The right to education includes the right to be free from discrimination within educational institutions. This includes, but is not limited to, the incorporation of gender-sensitive accommodations and a right to be free from bullying, violence as well as general exclusionary practices or discrimination. LGBT students are at an increased risk of verbal and physical bullying from classmates, teachers, and school administrators, such as taunting, name-calling, rumors, threats, ridicule, public humiliation, pushing, hitting, destruction of personal property, online harassment, and physical and sexual violence. Gendered dress codes in school regulations, enforced by school authorities, pose obstacles for transgender and gender-nonconforming students to express their gender identity and expression. Anti-bullying, gender-sensitive, and anti-misinformation guidelines and campaigns that incorporate the broader community are examples of good practice in protecting LGBT students. However, schools are not yet universally implementing essential policies around bullying of LGBT students and gender-sensitive dress codes. Harassment, violence, and the inability to express oneself in schools have detrimental effects on students and can lead to mental health issues, self-harm, and even suicide. Furthermore, students who are unable to express their gender in school settings face barriers to future employment further down the line, including through discrepancies between educational certificates and appearance.^[1.2]

Right to information in schools and comprehensive sexuality education

Access to information is essential to combatting anti-LGBT discrimination and violence. Creating an inclusive educational environment for all requires access to age-appropriate content for children and young adults, as well as free and safe digital spaces. Limiting access to information often results in censorship, further isolating and marginalizing LGBT students. Several States have imposed legal barriers to discussing or teaching about sexual orientation and gender identity in schools, and have banned gender studies programs in universities. In particular, States and local authorities have targeted comprehensive sexuality education, putting the health of all students, regardless of sexual orientation and gender identity, at risk. Barriers to comprehensive sexuality education include disinformation campaigns, book bans, cultural and religious reluctance to discuss sexuality, and outlawing of gender and sexuality discussions in health classes. In contrast, some States provide comprehensive age-appropriate sexuality education from primary school onward that includes discussion of a wide range of topics regarding the development of healthy relationships, including family planning and SOGI diversity.

SOGI-inclusive extracurricular activities

Under the right to education, States have a positive duty to facilitate the freedom to engage in extracurricular opportunities. This requires efforts to assure students who belong to marginalized societal groups have safe and permissible access to engage in extracurricular activities. Relatedly, the United Nations High Commissioner for Human Rights has reported that LGBT-inclusive extracurricular activities offer necessary and successful mitigation of discrimination based on SOGI in educational institutions. There is evidence of practice by States and civil society organizations across various geographic regions to establish programs that help LGBT students navigate their identities and build supportive communities. There exists a strong demand for the expansion of the availability and accessibility of SOGI-inclusive extracurricular opportunities throughout UN Member States.

Exclusion from Schools

Learning environments that fail to address SOGI-related biases contribute significantly to high levels of absenteeism among SOGI-diverse students. Many civil society organizations report a persistent practice among parental guardians of pulling their children from school due to their objection to LGBT relationships formed among peers as well as to comprehensive sexuality education courses which discuss SOGI issues. In certain geographic regions, CSOs have found that nearly 60 percent of SOGI-diverse students have chosen to miss class, in direct response to bullying they faced because of their sexual orientation or gender identity.^[1.3] Advocates report that these experiences exacerbate LGBT students’ feelings of social exclusion within education institutions, which contributes to their disproportionately high early-drop-out rates and lower levels of skilled employment in comparison to their peers.^[1.4] In some extreme contexts, SOGI-diverse individuals are expelled from school altogether. Such a demonstration of States’ failure to meet their obligations to provide an inclusive and comprehensive education for all students underscores the urgent need for greater investment in policies and programs that address these disparities.

Objectives

1. Purpose of the Thematic Report

Based on the identification of good practices in States, the report will provide comprehensive insights into practical measures that States can adopt to fulfill their international legal obligations regarding the right to education. This includes recommendations for developing inclusive educational frameworks at all levels that proactively embrace SOGI diversity. This report will encourage States to address SOGI-based marginalization in schools by implementing policies that foster inclusive educational environments. Such efforts will help States satisfy their obligations to progressively realize the right to education, as enumerated by widely adopted treaty bodies.

This report will also identify specific laws, policies, and practices that infringe upon the rights of SOGI-diverse individuals in educational institutions. It will analyze the harmful consequences of these vehicles for exclusion. It will establish concrete recommendations to guide States’ mobilization upon their duty to safeguard the ability of the marginalized demographic of SOGI-diverse individuals to fully enjoy their right to education without discrimination or violence. It will communicate that doing so is a binding obligation under international human rights law.

Key questions and types of input/comments sought

Suggested questions

1. Does your country have any laws, policies, or practices (at the central or local levels) that, explicitly or implicitly, affect SOGI-diverse students’ right to be free from discrimination?
   1. This could include, but is not limited to:
      1. school policies or curricula regarding the recognition of SOGI diversity
      2. procedures to address bullying, or
      3. practices by teachers or administrators to safeguard or restrict the right.
   2. Are there any laws or policies that impact SOGI-diverse students’ ability to access equal educational opportunities?
   3. Have there been recent attempts to introduce, amend, or repeal such laws or policies?
2. Are there laws, policies, or practices that affect students’ right to information, particularly regarding SOGI diversity?
   1. This could include school rules regarding the provision of inclusive sexuality education or the discussion of topics related to SOGI diversity.
   2. Have schools offered LGBT-related resources on campus? Have they established working relationships with LGBT support networks in the broader community? What is the nature and extent of these relationships? Do students have access to these resources and support networks? Does that access extend to their parents and guardians? How is access to these resources and support networks cultivated?
3. What are the rights and roles of parents in processes aimed at addressing issues around the right to information for students? Are there national laws, policies, or practices that require public and/or private schools to address bullying or violence in educational settings, including on the basis of SOGI? If so, do these policies provide for protective and remedial processes to ensure the students affected are able to receive adequate, effective, and timely remedies and continue their education?
   1. Is there institutional tolerance of violence within schools? How are anti-bullying policies enforced? How are SOGI-diverse students protected from physical, verbal, or psychological violence?
   2. What role do school authorities and government officials play in ensuring the safety of SOGI-diverse students? Are there measures in place to mitigate potential abuse experienced by students at home because of their SOGI status?
4. How do laws, policies, or practices in your country affect the right to health for SOGI-diverse students?
   1. Are health services, including mental health support, or sexual and reproductive health education accessible, particularly in relation to SOGI-diverse identities?
   2. What is the status of schools’ willingness and ability to provide inclusive and affirming health services, counseling, or referral networks for SOGI-diverse students?
   3. What are the broader health outcomes for SOGI-diverse students as a result of such practices? Is there available national or institutional disaggregated data on health for students? Is this data disaggregated by sexual orientation and/or gender identity? Please include links to available data sets, if publicly available.
5. Are there laws, policies, or practices that impact SOGI-diverse students’ right to privacy in educational institutions?
   1. This could involve required disclosures of students’ gender identities or sexual orientations (forced outing), lack of protections for confidentiality in health or counseling services, or public disclosure of students’ personal information. Have there been any notable legal or policy challenges regarding the privacy rights of SOGI-diverse students in schools?
   2. Are there protections in place to ensure that students’ sexual orientation and gender identity are kept confidential by school staff and administrators? Can students opt to have their sexual orientation and gender identity kept confidential from parents?
   3. What are the rights and roles of parents in the protection of students’ rights to privacy?
6. Do any laws, policies, or practices in your country shape SOGI-diverse students’ ability to fully realize their right to identity?
   1. This might include policies regarding students’ ability to express their gender identity (e.g., through uniforms or names), access to facilities aligned with their gender identity (such as restrooms or locker rooms), or the legal recognition of their gender identity in school records.
   2. Do students have a right to change information about themselves retained by school administrators? This may include the right to make changes to their name and/ or gender classification on official records.
   3. Do any obstacles or penalties exist for students to freely express their sexual orientation or gender identity?
   4. Have there been efforts to reform or introduce such laws or policies, either locally or nationally?
7. In your country, is data collected on the enrollment of students in school that is disaggregated based on sexual orientation and gender identity. If so, what entity is responsible for collecting and producing such data? If data is publicly available, please include the relevant hyperlinks.

How inputs will be used?

Responses to the questions above can be submitted in English, French or Spanish, and in Word or PDF format, with a maximum word limit of 2,500 words.

If you wish your submissions to be kept confidential, you are kindly required to make an explicit request in your submission. Otherwise, information may be published online,^[4.1] and may be referenced in the report.

For any further questions or clarification, please do not hesitate to contact the mandate of the Independent Expert through the Office of the United Nations High Commissioner for Human Rights at [email protected].

1.1. Committee on Economic, Social and Cultural Rights, general comment No. 13 (1999), para 1

1.2. A/HRC/56/49/Add. 2, para. 42.

1.3. UNESCO, Background Paper Prepared for the 2020 GEM Report: Latin America and the Caribbean (2020), page 19

1.4. A/HRC/56/49/Add.1, para 47

4.1. Submissions may be published on the Web page of the respective thematic report, at: https://www.ohchr.org/en/special-procedures/ie-sexual-orientation-and-gender-identity/annual-thematic-reports.