A Right to Disclose

CHAPTER FIVE

A Right to Disclose: LGBTQ Youth Representation in Data, Science, and Policy Shannon D. Snapp*,1, Stephen T. Russell†, Mariella Arredondo{, Russell Skiba{ *California State University Monterey Bay, Seaside, CA, United States † University of Texas at Austin, Austin, TX, United States { Indiana University, Bloomington, IN, United States 1 Corresponding author: e-mail address: [email protected]

Contents 1. Introduction 2. Tensions and Barriers for SOGI Data Collection 2.1 Participation vs Protection Rights 2.2 Rights to Privacy 3. SOGI Data Collection Strategies Appendix. Status of Knowledge/Current Data Sources That Include SOGI Questions Data Sources Within the US Department of Education Data Sources Within the US Department of Justice Federal and State Health Surveys References

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Abstract There has been growing attention to sexual orientation and gender identity (SOGI) in child and adolescent development, public discourse, and research. A strong tension is clear: The right for participation, and thus representation in data, science, and policy, is often understood as conflicting with the right for protection, that is, safety from disclosure of a marginalized orientation or identity. Both participation and protection rights are also closely tied to young people's rights to privacy (or lack thereof). We review recent scholarship on SOGI in developmental sciences in light of this tension. We focus on schooling as a salient developmental context for all youth, a place that is historically unsafe for lesbian, gay, bisexual, transgender, queer, and questioning (LGBTQ) youth, and a context where researchers have identified gaps of knowledge as well as strategies for improvement. Our review focuses on the politics and processes of SOGI inclusion in education data collection efforts in the United States, an area where SOGI data collection is scarce in comparison to other systems of care, such as health. We suggest that one solution to the dilemma would be that youth have the right to disclose their SOGI information to whom and when they choose. We offer strategies on how to hold these tensions in balance and move toward SOGI-inclusive research and data collection so that LGBTQ youth can be represented in data, science, and policy. Equity and Justice in Developmental Science: Theoretical and Methodological Issues (S.S. Horn, M.D. Ruck & L.S. Liben, Eds.) # 2016 Elsevier Inc. Advances in Child Development and Behavior ( J.B. Benson, Series Ed.), Vol. 50 ISSN 0065-2407 http://dx.doi.org/10.1016/bs.acdb.2015.11.005 All rights reserved.

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1. INTRODUCTION There is a gap in our knowledge about inequality based on sexuality and gender identity (SOGI) as well as evidence-informed practices and policies that may support LGBTQ (lesbian, gay, bisexual, transgender, queer, and questioning) children and youth. While a gap in knowledge exists worldwide (eg, Kosciw & Pizmony-Levy, 2013), we focus our discussion on SOGI data collection within the United States, a country where the US Department of Education has issued a public commitment to ensure equal access to education for LGBT students and protect them from harassment (Webb, 2011) and where same-sex marriage was recently legalized. In spite of these strides toward equity and justice, there are still no constitutional protections for LGBTQ people, as sexual orientation and gender identity are not considered protected classes in the US Civil Rights code (Wofford, 2015). This gap hinders our ability to create healthy environments—at home, in school, and in the broader community—in which LGBTQ young people can thrive (Cianciotto & Cahill, 2012; Horn, Kosciw, & Russell, 2009; Mustanski, 2011; Russell, Kosciw, Horn, & Saewyc, 2010; Skiba, Arredondo, & Karega Rausch, 2014). Considering all these contexts, the school environment is a salient focal point on research with LGBTQ youth. First, schools are known to be a potentially unsafe places for LGBTQ students due to high rates of victimization and bullying (Kosciw, Greytak, Palmer, & Boesen, 2014; Russell, Everett, Rosario, & Birkett, 2013; Russell et al., 2010). An unsupportive school climate means that LGBTQ youth may be vulnerable to a host of concerns including compromised academic performance (Pearson, Muller, & Wilkinson, 2007), higher rates of truancy due to safety concerns (Birkett, Russell, & Corliss, 2014), and mental health risks such as depression and suicidal ideation (Baams, Grossman, & Russell, 2015). New research also suggests that there are disparities in school discipline experiences for LGBTQ and gender nonconforming youth compared to their heterosexual peers (Bellinger, Darcangelo, Horn, Meiners, & Schriber, 2016; Burdge, Licona, & Hyemingway, 2014; Himmelstein & Bru¨ckner, 2011; Snapp, Munley, Fields, & Russell, 2015). Evidence has shown that when youth experience exclusionary discipline (eg, suspension, expulsion) in school, they are more likely to encounter the juvenile and adult criminal systems, a process that has been called the “school-to-prison pipeline” (ACLU, 2008; Monahan, VanDerhei, Bechtold, & Cauffman, 2014). LGBTQ youth are also overrepresented in juvenile detention

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(Hunt & Moodie-Mills, 2012), suggesting that they are indeed part of the “pipeline population,” a population of nonmajority youth that are disproportionately pushed out of school and into criminal systems or alternative education (Snapp & Licona, 2016). Clearly the school context has the potential to negatively influence LGBTQ youth’s lives—and while several school-based strategies have been identified that can help ameliorate these concerns (Horn et al., 2009; Russell et al., 2010), there remain “more questions than answers” (Sexual Minority Assessment Research Team, 2009, p. 3) about how LGBTQ youth navigate and are influenced by their social contexts (Horn et al., 2009) including their schools. Further, civil rights remedies require documentation of unequal treatment. One important tool for documenting educational inequities is a federally mandated data collection effort driven by the US Department of Education’s Office for Civil Rights (OCR) called the Civil Rights Data Collection (CRDC). OCR’s CRDC provides basic documentation of educational inequities with respect to race, gender, and disability status; the basic understanding that there are discipline disparities by race, gender, and disability is due in large part to the collection and reporting of the CRDC data (Losen, Hewitt, & Toldson, 2014). At present, however, many federal, state, and local data sets fail to include SOGI questions alongside other nowstandard demographic questions, thereby limiting the ability to accurately assess educational experiences and outcomes, among others, for LGBTQ students. In contrast to issues of discipline disparities by race, disability, and gender, for which national databases such as the CRDC are available, there are no national or even state-level data sources that could enable the tracking of educational experiences for LGBTQ youth beyond bullying (for a description of current data sources, see Appendix). For example, data sources from US Departments of Education and Justice do not ask SOGI questions outright. Instead, they ask about biased-based harassment or bullying due to actual or perceived sexual orientation, which limits researchers’ ability to move beyond the current knowledge base about LGBTQ youth, which is that they are disproportionately harassed. There are little individually identifiable data that would allow researchers to link students’ SOGI information with other areas of their life, beyond bullying, and the data that do exist are asked of young adults that are 18 or older. Federal and state data collection efforts that do ask SOGI questions in their assessments are typically driven by agencies centered on health, not education (eg, Youth Risk Behavior Surveillance System through the

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Centers for Disease Control). This lack of national- or state-level assessments means that little information is available to document how LGBTQ youth are treated in schools. Further, there is no straightforward method to analyze relevant educational experiences such as school discipline and academic achievement. In response, advocates and scholars have repeatedly called for the collection of SOGI information in national, state, and local data collection efforts, particularly through Departments of Health, Education, and Justice (Burdge et al., 2014; Hunt & Moodie-Mills, 2012; Institute of Medicine, 2011; Losen et al., 2014; Snapp & Licona, in press; Snapp, Munley, et al., 2015). The expansion of research and data collection to include LGBTQ youth is a necessary next step to document unequal treatment; the presence of such documentation would be a key first step in addressing questions about policies and practices needed to reduce potential inequalities for LGBTQ students. At present, LGBTQ youth remain largely invisible in science and policy due to the absence of systematic SOGI data collection in large-scale, publicly funded surveys. Given growing awareness of vulnerability of LGBTQ youth, new data collection efforts may present challenges. For instance, concerns about how to reliably measure SOGI information on surveys (see Ridolfo, Miller, & Maitland, 2012) have resulted in the development of best practices to SOGI data collection (Sexual Minority Assessment Research Team, 2009). More complex challenges arise when SOGI data collection involves minors (as compared to adults), as concerns for young people’s protection and safety may conflict with youth’s rights to participation. In this chapter, we draw from the literature in developmental science, education, law, and health to highlight the tensions between students’ rights to protection, participation, and privacy as it relates to SOGI research within schools. We offer a series of recommendations that address these tensions and move toward LGBTQ youths’ representation in data, science, and policy. We suggest that the failure to ask SOGI questions in national and state assessments of school violence, safety, climate, and discipline violates students’ rights to participation, and arguably protection, since that lack of data hinders visibility of LGBTQ students in science as well as policy and practice. Without substantial data to document potential inequalities in youths’ experiences at school, civil rights remedies may fail to address such inequities at the policy level. Finally, after consideration of literature and practice from a variety of fields, we argue that one solution to addressing both participation and protection rights would be to give students the right to disclose their SOGI when and to whom they choose.

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2. TENSIONS AND BARRIERS FOR SOGI DATA COLLECTION LGBTQ students face hostile and discriminatory environments that make them vulnerable to poor psychosocial adjustment and low achievement (Baams et al., 2015; Snapp, Munley, et al., 2015; Watson & Russell, 2014), but collection of both anonymous and individually identifiable data that would enable systematic tracking of these outcomes (as currently possible for youth of color and youth with disabilities) as well as protections for LGBTQ youth is lacking. The barriers to SOGI inclusion in systematic data collection efforts can be understood and analyzed within broader discussions about children and youth’s rights to participation, protection, and privacy in schools.

2.1 Participation vs Protection Rights Outlined by the United Nations Convention on the Rights of the Child (CRC, United Nations General Assembly, 1989), children’s rights have been divided into three main categories: survival and development rights, protection rights, and participation rights (Diers, 2013). In discourse and attitudes toward youth rights, although protection is often presumed to be primary (Cherney & Shing, 2008; Peterson-Badali & Ruck, 2008; Ruck & Horn, 2008; Ruck, Keating, Saewyc, Earls, & Ben-Arieh, 2014), there has been a relatively recent shift toward granting youth self-determination and selfexpression rights, which includes their right to participation (Ruck & Horn, 2008). The work of the CRC has attempted to strike a balance (Ruck & Horn, 2008) between participation and protection rights due to young people’s salient developmental needs and changes (Ruck et al., 2014, p. 3). Indeed, children as young as 12 have been found to endorse the need for greater autonomy and self-determination over nurturance or protection rights (Cherney & Shing, 2008). In what follows, the distinctions, possible conflicts, and potential balance between protection and participation rights are examined. 2.1.1 Rights to Protection Young people’s rights to protection include a protection from harm, violence, abuse, and exploitation (Cherney & Shing, 2008; Ruck et al., 2014). As it pertains to SOGI inclusion in research and federal data collection efforts, protection rights can be also viewed from two distinct and potentially conflicting vantage points. On one hand, such data collection,

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particularly if the data are not anonymous, may make LGBTQ youth vulnerable to harm from those who have access to such data, such as parents who are unaware and potentially unsupportive of a child’s LGBTQ identity. On the other hand, protecting students from harm is made more difficult in the absence of data documenting that harm has occurred. First, when students disclose SOGI information, assurance of protection of that information is needed, both regarding how it is collected and how it is used and archived. When SOGI data are collected, youth must be protected from inadvertent disclosure of their LGBTQ identities (being “outed”). To collect such data introduces tensions for all those concerned with protecting students. The existence of SOGI data reported by minors implies the potential risk of disclosure of that information to others, thereby potentially infringing on their right to protection, especially if a parent or guardian is unaware of or unsupportive of their child’s sexual identity or gender expression. In a school setting, for example, student data are often linked to individual students’ records (Fordham Center on Law & Informational Policy, 2009), and all such information is available to a range of school personnel, and accessible by parents or guardians. Thus there is a need to develop strategies to protect youth if they disclose their SOGI status, particularly if that information is linked to records to which multiple people might have access such as school personnel, medical providers, parents, or guardians. If SOGI information is not linked to student records but is not anonymous, researchers would remain responsible for storing the data in a secure place and deidentifying the data when reported. Second, data are a tool that are increasingly used to track potential harms youth may experience. For example, researchers have identified the need for systematic data collection and surveillance in order to better track abuse or exploitation of children, especially sexual in nature (Ruck et al., 2014). Limited research and documented disparities among marginalized adolescents warrant attention to protection of young people from other harms and forms of violence they may face (Ruck et al., 2014). The CRC (1989) also emphasizes that young people’s rights to protection also include protection for minority groups. We know, for instance, that LGBTQ youth face a range of harassment, assault, and discriminatory practices in schools due to their actual or perceived sexual orientation and gender identity/expression (Kosciw et al., 2014). We know less about the correlates of harassment, for example, with educational outcomes such as dropout rates, in part because SOGI data are often missing from data collection systems (Cahill & Makadon, 2014; Meyer & Bayer, 2013). The failure to collect

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SOGI information means that educational disparities and their correlates remain undocumented, making it difficult to protect LGBTQ students from exclusionary discipline or discriminatory harassment. The result is that marginalized students who may already face disproportionate vulnerabilities are unable to make their experiences, lives, and needs visible to those who can adjust policies and practices to support and protect them. 2.1.2 Rights to Participation Participation rights give young people the right to participate in “matters and decisions affecting them” (CRC, 1989). Rights for participation arguably call for full participation in scientific research. Article 13 of the CRC states that children have a right to expression, which includes “freedom to seek, receive and impart information and ideas of all kinds.” To fully participate in science, youth need to be able to disclose SOGI information alongside other relevant information about their identities and lives. Young people’s full participation in research is an enactment of their right to share information about their personal experiences and lives for the purposes of knowledge and application. From this viewpoint, participation is representation both in science and in policy, a place where adolescent (Diers, 2013) and LGBTQ representation are often missing, in large part, due to a data gap (Horn et al., 2009; IOM, 2011; Mustanski, 2011). Without a guarantee of participation, other rights may be compromised, including youth’s rights to develop (ie, Article 6 in the CRC states that “States Parties shall ensure to the maximum extent possible the survival and development of the child”), receive fair education, and avoid criminal systems. LGBTQ youth’s ability to fully participate in school (ie, “the freedom to seek, receive and impart information and ideas of all kinds”) is challenged when they face regular harassment and a homophobic school climate (Snapp, Burdge, Licona, Moody, & Russell, 2015). LGBTQ youth, when faced with regular bullying and harassment in school, may fight to protect themselves, which makes them vulnerable to increased discipline and as a result encountering criminal systems (Snapp, Munley, et al., 2015). In addition, when youths’ rights are restricted, there are negative implications for psychological health and well-being (Helwig & McNeil, 2011; Qin, Pomerantz, & Wang, 2009; Way, Reddy, & Rhodes, 2007). To deny or exclude adolescents from the right to participate in research is considered a detriment to their health (Santelli et al., 2003), and in the case of LGBTQ youth, both intervention and prevention efforts are compromised by limited empirical knowledge that could be used to ameliorate health disparities

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among this population (Fisher & Mustanski, 2014). Considered from a different vantage point, research on decision-making autonomy has shown that it is associated with enhanced emotional functioning (eg, higher self-esteem and lower rates of depression) even in early adolescence (Qin et al., 2009). Inasmuch as self-representation through inclusion in data collection and research is associated with autonomy and agency, such research indicates that as young people move from early childhood to adolescence, rights to participation become increasingly developmentally salient (Ruck & Horn, 2008; Ruck et al., 2014). 2.1.3 Participation and Protection Rights and the Institutional Review Board Tensions within the research review process may also prevent scholars and other agencies from data collection regarding SOGI with young people. Researchers conducting research with children and youth under 18 must receive approval from the Institutional Review Board (IRB) at their institution. Age of participants, the parental consent process, and reduction of risks are all components of the IRB process that may create additional challenges for SOGI data collection with children and youth. First, researchers have identified variations among the definition of the word “children.” Notable organizations vested in research to support children and adolescent health and well-being, including the Institute of Medicine (IOM) and the Society for Adolescent Medicine (SAM), have indicated that “child” can signify young people 12 and under to 18 and under. In his specific example, Mustanski (2011) used age 12 and under as a cutoff point for classification of “child,” in which those older than 12 should not require parental consent to participate in a research study. Other research suggests that young people 14 and older have the capacity to understand and make decisions about their participation in research (Santelli et al., 2003; Susman, Dorn, & Fletcher, 1992). Despite these suggestions from scholars, parental consent is typically required for research with children and youth under 18. The prospect of harm is one rationale for granting a waiver of parental consent by IRBs, and a route regularly practiced by those who conduct research on LGBTQ youth (Mustanski, 2011). According to the APA Standards for Parental Consent in School-Based Research, parents have a right to inspect research materials and consent to their child’s participation if such research material includes questions about sexual attitudes and behaviors (Fisher, 2003). Yet, there are also opportunities to waive

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the parental consent process “as long as the research procedures themselves do not create distress or harm” (Fisher, 2003, p. 157). Further, asking for parental consent in the case of research with LGBTQ youth could bring harm to the participants, particularly if parents are unaware of their sexual orientation or gender identity and are unsupportive (Martin & Meezan, 2003). In the case of scientific studies, researchers may also apply for a Certificate of Confidentiality (National Institutes of Health, 2015) that would protect against any possible challenge by a parent for disclosure of the data in order to protect participants’ SOGI and other sensitive information. Researchers may also be thwarted in asking SOGI-related questions or conducting research with LGBTQ youth for fear that IRBs will say “no” (Fisher & Mustanski, 2014; Mustanski, 2011; Tufford, Newman, Brennan, Craig, & Woodford, 2012). Researchers have noted that “ambiguities in regulations” are in part due to the provisions set for the IRB to protect children involved in research, which are guided (in the United States) by the Code of Federal Regulations (CFR 46.402; Fisher & Mustanski, 2014, p. 28). Despite clear guidelines in federal regulations regarding the factors that constitute risk, IRBs are often especially concerned with the risks involved when asking “sensitive” questions in research with children and youth, particularly LGBTQ youth (Fisher & Mustanski, 2014; Mustanski, 2011; Tufford et al., 2012). Recent scholarship has begun to document the steps necessary to conduct sexuality research with young people, which also promotes justice in research (Fisher & Mustanski, 2014; Mustanski, 2011).

2.2 Rights to Privacy While the “right to privacy” is classified under participation rights in the CRC (Article 16), it underlies both rights to protection and participation and may complicate young people’s right to disclose their SOGI information. The need for a balance across students’ rights is recognized by a Resolution on LGBTQI Children and Youth in Schools put forth by the American Psychological Association (APA) and the National Association of School Psychologists (NASP) in 2014. This resolution lists several key steps that schools can take to create safe and supportive school climates for all students. Two such steps directly align with the issue at hand: (1) “Protecting the right to privacy around sex, sexual orientation, and gender identity for children and youth in schools,” and (2) “Collecting data on

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SOGI in schools.” The resolution further calls for schools to develop policies that would protect students’ rights to privacy in regard to their SOGI. Specifically, school personnel are asked to refrain from disclosing students’ sexual orientation and gender identity/expression to anyone—including parents and other school personnel—without the student’s consent (APA & NASP, 2014). Through this resolution, school psychologists appear to privilege privacy rights as a way to protect youth; several legal scholars also agree and utilize case law to encourage new protections for LGBTQ youth (Cullitan, 2011; Kretz, 2013; Zirkel, 2014).

2.2.1 Minors’ Rights to Informational Privacy In the past few years, legal scholars (Cullitan, 2011; Kretz, 2013; Zirkel, 2014) have taken up the debate of children’s privacy rights concerning SOGI disclosure. Their arguments are grounded in research documenting that (a) sexuality identity experimentation and development is normative during adolescence (Floyd & Bakeman, 2006; Spigarelli, 2007), (b) may be both stable and fluid (Rosario, Schrimshaw, Hunter, & Braun, 2006), and (c) youths’ self-reports of SOGI information on a survey can change over time (Rosario, Schrimshaw, & Hunter, 2011). Being outed during this developmental process could hinder young people’s well-being (Higa et al., 2014). Thus, youth should have the right to disclose to whom and when they choose and have this information kept private (Cullitan, 2011; Kretz, 2013). In addition to drawing upon social science research of the possible harms of forced disclosure or outing youth to their parents (Fisher & Mustanski, 2014), legal scholars and educators have argued for increased informational privacy rights for minors (Biegel, 2010; Cullitan, 2011). There are several statutes that protect and privilege minors’ rights over parental rights. For instance, Cullitan (2011) argues that without informational privacy, minors are vulnerable to harm such that they may not seek medical care when necessary, and disclosure of personal information such as sexual orientation may make them even more vulnerable to family rejection and homelessness. Privacy for SOGI status is connected to other legal issues regarding minors’ rights, including protection against forced disclosure of pregnancy, abortion, and sexually transmitted infections (STIs) treatment and could be extended to other issues in which minors may have a vested interest in keeping such information private (eg, interracial and interreligious dating; Cullitan, 2011; Kretz, 2013).

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2.2.1.1 Court Rulings on Minors’ Rights to Privacy in Regard to Sexual Orientation

Children are entitled to privacy rights as part of their constitutional rights, although their right to informational privacya has not been decided upon by the Supreme Court (Cullitan, 2011). The Supreme Court, however, has afforded children the right to some privacy regarding their sexual lives, such as choices that affect procreation including the decision to have an abortion and to obtain contraceptives (Carey v. Population Services, 1977; Planned Parenthood of Central Mo. v. Danforth, 1976). Three circuit courts (Third, Ninth, and Tenth) have ruled in favor of informational privacy for children, with variations, and through the application of adult informational privacy standards (Wynn v. Carey, 1979). For instance, the 3rd Circuit Court ruled that informational privacy for children is similar to that of adults, which includes privacy in medical and financial records and privacy in regard to sexual orientation (Sterling v. Borough of Minersville, 2000). In Sterling, the estate of Wayman Sterling filed a suit against a police officer and a municipality for a privacy violation. Sterling, aged 17, in the company of a male friend, was arrested for public drinking. Police officers alleged that the two men had the intent to have sex, which the men denied. One officer threatened to out Sterling to his grandfather (his legal guardian) if Sterling did not tell his grandfather he was gay. Out of fear from this threat, Wayman Sterling died by suicide. In this case, the court ruled that Sterling had a right to have intimate aspects of his life protected under his right to privacy, sexual orientation being included as a “matter of personal intimacy” (Kretz, 2013). Minors’ rights to privacy about their sexuality if disclosed in schools have also been the subject of court precedent (Nguon v. Wolf, 2007). Similar to findings in research on LGBTQ youth and school discipline (Snapp, Munley, et al., 2015), Charlene Nguon was disciplined for displaying affection with her girlfriend in school. While she was out at school, she was not out at home, and in the process of disciplining her, the school principal outed her to her mother (Nguon v. Wolf, 2007). In the Nguon case, the court agreed that Charlene had a right to have her sexual orientation protected under her right to informational privacy and that the principal (Wolf ) did in fact violate that privacy by disclosing her sexual orientation to her mother. However, the court ruled that Wolf had a “compelling state interest” in disclosing this information in order to be transparent about the “exact nature” of her conduct. The court a

Privacy that secures their personal information and gives the individual the right to decide whether they disclose private and personal information (Gilbert, 2007).

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further justified this disclosure by noting that although Charlene had kept her school and home life “sufficiently separate,” her consistent breakage of the school rules on public displays of affection meant that she dissolved the separation of home and school and “in effect injected the nature of that conduct into the home” (Nguon v. Wolf, 2007). Legal scholars have argued that the Nguon case privileges administrators’ discretion to disclose and does little to protect students from this disclosure. This places the burden of keeping school and home separate on the shoulders of the students (Kretz, 2013). Like others (Cullitan, 2011), Kretz (2013) asks for heightened protection of privacy rights in concern to students’ sexual orientation, arguing that minors need more, not less, privacy than adults. Kretz (2013) justifies this need for heightened protection around SOGI issues and youth and asks the courts to recognize: (a) the vulnerabilities of LGBTQ youth, (b) that parents do not always “act in the best interest” of their LGBTQ children, and (c) the courts place limits on children’s right to choose the best course of action for them. In sum, advocates have argued for a change that would place the burden on adults to ensure protection, while giving young people the ability to disclose SOGI information to whomever they choose and to have this information kept private (Cullitan, 2011; Kretz, 2013; Lau, 2007). 2.2.1.2 Minors’ Rights to Privacy and Parents’ Rights

How schools collect and record SOGI information and whether they disclose that information to parents is where the “two constitutional privacy interests are starker” (Waldman, 2014, p. 704). While the Supreme Court has yet to definitively include sexual orientation in minors’ privacy rights, there is legal scholarship that suggests as much. Waldman writes: In most situations, schools should be able to use their best judgment as to whether to disclose students’ personal information to parents, provided that they have legitimately obtained the information and are not motivated by malice, without fearing liability under an informational privacy theory if they disclose or under a parental privacy theory if they do not. Waldman (2014, p. 704)

Schools are in a bind when they do obtain sensitive information about a child—to protect both the privacy of the student and the parents’ rights to have knowledge that will support the care and upbringing of their child (Waldman, 2014). Historically, parents’ rights have superseded children’s (Levesque, 2008), and legal strategies such as the Parents’ Bill of Rights passed in states like Colorado (2015) and Arizona (2010) have been used to deny

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children privacy rights and access to information that may support their health (Hatlestad, 2015). In an effort to reconcile both parents’ rights and students’ rights to privacy, Waldman (2014) suggests that minors should be protected from “arbitrary or malicious” disclosure on behalf of the government [vis-a-vis schools] of students’ personal information to their parents. While this argument is contextualized in court cases where students have been outed by school officials, it does not discuss the Family Education Rights and Privacy Act (20 U.S.C. § 1232g; 34 CFR Part 99; FERPA) or students privacy in regard to their students’ records. However, it does demonstrate that “good policy” is evident when the best interests of students and parents are in balance. Positioning students’ privacy as in need of protection should not create scenarios in which schools suggest students “keep secrets” but instead creates a scenario where schools can use their discretion to disclose without the worry of violating students’ or parents’ rights (Waldman, 2014). Waldman (2014) explores the issue of probing for student information via data collection and suggests that schools refrain from asking sensitive information unless there is a reason to suspect student well-being is compromised or students and/or parents request such data collection. Yet, extant data on LGBTQ youth documents that well-being, health, and educational outcomes are in fact often compromised (eg, Pearson et al., 2007; Russell et al., 2013). Further, research has demonstrated that fewer parents than anticipated actually oppose SOGI-related information being discussed in school, and instead can be considered as allies in the creation of supportive school climates for LGBTQ and straight students alike (Tasker, Peter, & Horn, 2014). This suggests that the sensitivity to SOGI data collection may be met with less opposition than anticipated, and parents may be allies in this process. 2.2.2 Data Collection and Student Records While the developmental science, health, and now legal literatures make the case for SOGI inclusion and students’ capacity to answer such questions, the concern remains regarding how to collect SOGI information in schools. To collect such information, especially if it is stored in student records, may be in direct conflict with their right to protection since FERPA mandates that parents can gain access to this information without students’ consent. This is not a major concern for SOGI data collection that exists on anonymous or nonanonymous surveys, provided parental consent is waived (Mustanski, 2011). It becomes more delicate, however, when federal education data

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collection strategies such as the CRDC disaggregate school discipline and other educational data by race/ethnicity and other characteristics (eg, disability, gender, religion) by individual student. CRDC is the crucial source of data on discipline disparities nationwide in the United States and is able to link pertinent demographic information found in student records with reports of discipline action such as suspensions/expulsions, enabling school districts to understand if some students experience disproportionate discipline (OCR, 2012). CRDC does not collect SOGI information; thus at least within these data, we are not able to document potential discipline disparities or other harms for LGBTQ students. Additionally, SOGI information is not requested or recorded in student records in any systematic form. The clearly appropriate rationale for this is to protect students’ privacy and to ensure they are safe from harm. Because FERPA allows parents full access to students’ records until they are 18, any information, including SOGI information, would be available to parents. This is problematic for those young people who may not be ready to disclose their SOGI information to their parents, especially in cases where doing so may put them at risk for family rejection, homelessness, or other harms (D’Augelli, Hershberger, & Pilkington, 1998). In other words, FERPA means that there can be no information in student records that is private from parents, and thus any sensitive information must be released to parents if requested. This has also created tensions for school mental health professionals who are bound by both FERPA and the American Psychological Association’s (APA) code of ethics, which insists on confidentiality between client and therapist (APA, 2002; Doll, Strein, Jacob, & Prasse, 2011). In summary, at present there are clear rationales from scholars and advocates across disciplines to collect SOGI information in data, which provides some assurances that LGBTQ youth’s participation rights are recognized. There are also clear tensions to ensure the right to participation alongside protection and privacy rights. Knowing these tensions and attempting to balance them, we suggest a few initial strategies to help move stakeholders beyond the stalemate that prevents widespread SOGI data collection with youth.

3. SOGI DATA COLLECTION STRATEGIES While it is important to find the balance of participation and privacy rights (Ruck et al., 2014), it is also important that youth’s rights are in

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balance with parents’ rights. Legal scholars suggest that sensitive information should be asked in educational settings if student well-being is compromised or if requests for such data collection are collectively made by parents and students (Waldman, 2014). Thus, one potential solution is that parents and students begin to ask for SOGI information to be collected in national, state, and local data collection efforts. Collaborations with community members, including parents and students, have already resulted in such a request (Burdge et al., 2014; The Trevor Project, n.d.). It is now up to stakeholders to create the infrastructure to make widespread SOGI data collection with youth possible. To address this request, surveys that already ask about educational outcomes at the federal, state, and local level (see Appendix) could now include SOGI questions; to do so however would require (a) that such information is not linked to student records or (b) a change in privacy standards for SOGI information stored in student records. In order to collect individually identifiable data, we can look to the field of healthcare to understand how youth disclose important and sensitive information to medical professionals (including SOGI information) in a system that balances both minors’ rights to protection and privacy. Within the health-care field, minors can be assured that sensitive information they tell their doctors will not be disclosed to their parents, such as SOGI information, if they request an STI test, or get prescriptions for birth control (Ford & English, 2002). Doctors will not disclose such information to young people’s parents unless they feel the child is at risk of harm or may injure him/herself or others. Such privacy protections make it more likely that youth will disclose pertinent information to doctors and receive the care they need without worry about parental involvement (Ford & English, 2002; Ford, Millstein, Halpern-Felsher, & Irwin, 1997). In a time of electronic health records (EHR), SOGI data collection in clinical settings is becoming more common and is considered an essential step to reduce LGBTQ health disparities (Cahill & Makadon, 2013). A standard of measurement has also been tested to ensure that health-care providers are asking SOGI information effectively and consistently across systems of care. Cahill and Makadon (2013) note the challenges (eg, confidentiality and discrimination) in SOGI data collection from EHR. However, they also note that “we should not let the perfect be the enemy of the good”; the same could be said for SOGI data collection in educational research (Cahill & Makadon, 2014, p. 39). In the effort to move toward the improved protection and participation rights of youth that may result from SOGI data collection in schools, one

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option might well be to consider nuances to students’ informational privacy within their educational records that could mirror their privacy rights in their medical records. In other words, some sensitive information with student records might be held private unless the student decides to make this information accessible to parents. This would give young people the right to disclose SOGI information to whom and when they choose, which is both developmentally appropriate and balances participation (including privacy) and protection rights. Doing so removes the burden from LGBTQ students who may fail to thrive when education and policy fail to intervene in educational inequities simply because little data exist to document the realities of those students’ lives. SOGI data collection aligns not only with CRC but several other initiatives aimed to end disparities for LGBTQ people in the United States (eg, the Department of Health and Human Services Recommended Actions to Improve LGBT Health and Well-Being) as well as globally (eg, Healthy People, 2020). Developmental scientists can also play a pivotal role in SOGI data collection and LGBTQ youths’ representation in data, science, and policy. Researchers and relevant organizations within the field can partner with federal, state, and local agencies to implement best practices for SOGI data collection within existent data sources. Developmental scientists, regardless of specialty, can also begin to collect SOGI data alongside other demographic questions in their own professional research. Doing so holds the potential to advance equity and justice within the field of developmental science and arguably should be the standard. Sexual orientation and gender identity are personal characteristics that have implications for human development throughout the lifespan, similar to other personal characteristics and demographics that researchers now standardly collect such as gender, race/ethnicity, and socioeconomic status. Developmental scientists often refrain from asking SOGI questions in their own research processes for diverse reasons, but most likely because their research does not focus on LGBTQ people. However, the failure to ask such questions also means that less information is known about the study participants and their possible contexts, which inherently limits knowledge and an ability to intervene in potential inequities. The failure to ask such questions may also inadvertently add to the stigma of LGBTQ people. The inclusion of SOGI questions in research may mean that developmental scholars have to face the aforementioned tensions (eg, protection of human subjects when LGBTQ people remain stigmatized). Some of these tensions may be reduced through institutional supports such as the IRB,

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which was created to ensure the protection of human subjects. A regular “ask” of SOGI information in data collection not only normalizes the questions but will likely require a shift in resistance from IRBs as SOGI questions become standard demographic questions in research with human subjects. Such a shift, along with appropriate protections, can ensure the representation of young people who are often considered “doubly vulnerable” (Moore & Miller, 1999). Academic journals may also support the advancement of equity and justice for LGBTQ people by requiring that SOGI information be reported in manuscripts submitted for publication. Within the field, advances in equity and justice have already been made by agencies such as the National Institutes of Health (NIH) through their “Strategic Plan to Advance Research on the Health and Well-Being of Sexual and Gender Minorities” (NIH, 2015) and their related funding mechanisms to support research on sexual and gender minorities. International societies within the field of developmental science can create similar strategic plans to advance research and improve the development of LGBTQ children, youth, and adults across the lifespan. For developmental scientists outside of the United States, it is important to acknowledge that LGBTQ rights throughout the world may heavily dictate whether SOGI data collection is feasible and safe. There are a few countries where homosexuality is punishable by death including Yemen, Iran, Saudi Arabia, Sudan, and Mauritania, and some states in Nigeria and Somalia (Arnett, 2014). Several more may imprison or impose criminal sanctions against those who are “out” (see Cage, Herman, & Good, 2014 for an interactive map on LGBTQ rights around the world). In such contexts, data collection would be dangerous. Nonetheless, there are considerable strides in LGBTQ youth representation in data, science, and policy due to global partnerships aimed to reduce SOGI-related bullying, such as the one between the US-based organization Gay, Lesbian, and Straight Education Network (GLSEN) and the United Nations Educational, Scientific and Cultural Organization (UNESCO; Kosciw & Pizmony-Levy, 2013). Developmental scientists can also partner with related organizations such as “Advocates for Youth,” which works to improve sexual and reproductive health worldwide. Recently, they highlighted SOGI data collection within “trendsetting” countries such as Germany, Brazil, and the United States (Advocates for Youth, 2010). Finally, the discussion about children/youths’ rights to disclose sensitive information extends beyond SOGI disclosure to other issues where children and youth have been asked to keep relevant information secret despite the

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implications it may have for their health, well-being, and educational success. For example, undocumented immigrant youth may be vulnerable to health and educational inequities (Herna´ndez, Nguyen, Casanova, Sua´rez-Orozco, & Saetermoe, 2013), and disclosure of immigrant status is considered risky due to the fear of deportation (Yoshikawa, 2011). It behooves stakeholders to take seriously the potential harms that come from refraining to ask relevant questions about young people’s lives and to weigh those against the potential harms of gaining such information. While there may not be a “perfect” solution to SOGI data collection in schools, we believe that there are pathways forward that can result not only in LGBTQ youths’ representation in data, science, and policy, but ultimately a reduction in inequality.

APPENDIX. STATUS OF KNOWLEDGE/CURRENT DATA SOURCES THAT INCLUDE SOGI QUESTIONS Data Sources Within the US Department of Education Civil Rights Data Collection (CRDC) In order to better understand the experiences of youth in schools, beginning in 2015–16, the US Department of Education’s Office for Civil Rights (OCR) will require states to include reporting on allegations of harassment or bullying on the basis of religion and on the basis of sexual orientation on the Civil Rights Data Collection (CRDC) survey (US Department of Education, 2014). Specifically, schools must report number of reported allegations of harassment or bullying of K-12 students due to sexual orientation or religion (optional 2013–14; required 2015–16). School Survey on Crime and Safety and the High School Longitudinal Survey Through the National Center for Education Statistics (NCES), the federal entity for collecting and analyzing data related to education in the United States and other nations, SOGI questions are asked to students and administrators regarding hate crimes and bias-based bullying through annual and longitudinal surveys. Within the School Survey on Crime and Safety (SSCS), a nationally representative sample of school principals complete questions yearly regarding student harassment based on sexual orientation or gender identity. For the High School Longitudinal Survey (HSLS), questions have recently been added on bias-based bullying to this longitudinal survey

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following youth since 2009. The agency worked with the national organization GLSEN, Northwestern University’s The Family Institute, and The GenIUSS group (Gender Identity in US Surveillance), convened by the Williams Institute at UCLA, to develop questions about sexual orientation and experiences during high school. These will be included in their 2016 data collection, though the sampled population is now over 18 years of age.b

Data Sources Within the US Department of Justice The School Crime Survey The Department of Justice created the School Crime Survey (SCS) as a supplement to the National Crime Victimization Survey (NCVS) that asks students about bias-based bullying due to SOGI. Designed with the NCES and the Bureau of Justice Statistics (BJS), the School Crime Survey is a national survey that has collected data every 2 years since 1989 from public and private schools across the country. The survey reports whether students who are the target of hate-related words or see hate-related words or symbols at school feel as though these have to do with their race, ethnicity, religion, disability, gender, or sexual orientation. Although students are asked about SOGI-based school experiences, the survey does not currently ask students to identify their sexual orientation or gender identity in the demographics section, thereby limiting our knowledge to understand if harassment is based on actual or perceived sexual orientation.

Federal and State Health Surveys Many national and federal health surveys have included SOGI questions in order to learn about health disparities that individuals may face (Evans, Lawler, & Sass, 2014). Youth Risk Behavior Surveillance System The Centers for Disease Control and Prevention’s Youth Risk Behavior Surveillance System (YRBSS), which examines health risk behaviors that contribute to the leading causes of death and disability among youth and adults, includes an optional supplementary survey that asks questions about sexual identity and sexual behavior. In 2013, 20 states voluntarily included the SOGI supplement in their survey, although the questions varied from state to state. b

They will not ask SOGI while students are still in high school because the survey takes place in school and are limited by FERPA regulations.

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Beginning in 2015, SOGI questions have been included in the core YRBSS questionnaire; however, states can opt to remove the data at the national level. Moreover, the survey also includes bias-based bullying questions that include sexual orientation as an option. Longitudinal Study of Adolescent Health (AddHealth) The Department of Health and Human Services (HHS) and the National Institute of Child Health and Human Development (NICHD) currently collect data on a nationally representative sample of adolescents who are in grades 7–12 though AddHealth. In addition to data collection on social, economic, psychological, and physical well-being, the survey provides an opportunity to link how behavior and social environment in adolescence affect health and achievement outcomes in the future. Participants are asked to identify the sex of romantic partners and individuals they find physically attractive. National Health Interview Survey Conducted by the National Center for Health Statistics (NHIS), the National Health Interview Survey provides national representative estimates of health statistics for the United States and began asking sexual orientation questions to young adults (18+) in 2013. In this survey, respondents are given the option to identify as lesbian or gay, straight, bisexual, something else, or I don’t know. California's School Climate, Health and Learning Survey (Cal-SCHLS) Many states are developing their own statewide surveys aimed at better understanding their youths’ health behaviors and outcomes. For example, as a part of California’s School Climate, Health and Learning Survey (Cal-SCHLS), the California Department of Education has developed the California Healthy Kids Survey (CHKS). Students are asked to identify how many times they were harassed or bullied in the last 12 months because of their sexual orientation or perceived sexual orientation.

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