OTHER STUDENTS ALWAYS USED TO SAY, LOOK AT THE DYKES - PROTECTING STUDENTS FROM PEER SEXUAL ORIENTATION HARASSMENT

Student-to-student sexual orientation harassment is a serious problem; it harms, often severely, a considerable number of students. Existing laws, however, fail to address this problem adequately. Some laws cur rently ban discrimination based on sexual orientation, but these laws have been applied only in a minority of jurisdictions to date. Laws pr ohibiting discrimination based on sex are more common. Although these laws, properly interpreted, should provide protection to victims of se xual orientation harassment, most courts have refused to interpret sex discrimination laws in this fashion. Additionally, even if courts app lied sex discrimination laws to student-to-student sexual orientation harassment, these laws, like current laws that ban discrimination base d on sexual orientation, provide only incomplete protection to student s subject to harassment. Current laws afford relief only when the vict im of harassment is able to demonstrate that the school and/or harasse r acted or failed to act specifically by referring to the victim's sex ual orientation and making a decision based on that sexual orientation . Because student-to-student sexual orientation harassment occurs and causes harm even when the school's and/or the harasser's motivation fo r acting or failing to act is something other than the victim's sexual orientation, existing laws, including sex discrimination laws, are to o narrow with respect to the scope of protection that they provide. Be cause of this gap in protection, this Comment proposes a statute that comprehensively addresses student-to-student sexual orientation harass ment. This Comment argues that the slightly increased responsibility t hat the proposed statute places on schools is fully justified by the n eed to prevent student-to-student sexual orientation harassment and it s negative effects.