As 2020 demonstrated for all of us, life can be challenging. It can be even more challenging when your rights are infringed upon. In general, we still live in a society that challenges, insults, and oppresses the seemingly “different” of the herd. This is especially the case for the LGBTQ community. While this societal ill-treatment is difficult enough for adults, these forces of societal judgment can feel insurmountable for students, who are usually minors, and might not be completely aware of their rights in an adult-run educational establishment. While it can be difficult to prevent students from singling out or ostracizing one another, it is unjust for adults or the educational system to treat LGBTQ students differently because of their identity.

With this in mind, the purpose of this article is threefold. First, it provides a case analysis of foundational First Amendment education cases to build a structure for advancing LGBTQ cases in the modern context. Second, it provides legal practitioners with an evolutionary legal history and pinpoints key citations to use in creating the legal underpinnings of their legal arguments and briefs. Third, because the U.S. Supreme Court has not ruled specifically on this issue in the educational context, it provides a legal framework for how to raise these issues and a discussion of how this framework is applied in recent district and appellant court decisions.

In order to understand the current First Amendment protections afforded to LGBTQ students who wish to express their sexual orientation or gender identity in K-12 schools, we must explore key First Amendment cases in education. The United States Supreme Court’s interpretation of the First Amendment, like the application of many other amendments, is ever-evolving and builds on previous decisions to form a current understanding of what is considered protected speech. Specifically, there have been a number of First Amendment cases that have applied directly to K-12 schools. We can distill specific elements of protected student speech and contrast them to current cases that involve LGBTQ student issues. Using those previous decisions as a predictive model, a general theory can be synthesized about when, how, and why LGBTQ student expression of gender identities or sexual orientation is a form of protected speech. The aspects of this framework are based on these ideas: (1) did the student’s actions constitute expressive speech and (2) did the school district intend to suppress the speech or (3) did it cause a substantial disruption that interfered with the educational environment?