Refugees in Our Midst : Applying International Human Rights Law to the Bullying of LGBTQ Youth in the United States

This Article explores the severe bullying of LGBTQ students from a comparative international human rights perspective. Modern international refugee law, in existence since 1951 and accepted by 146 countries, provides a useful framework for evaluating the seriousness of the harm experienced by bullied LGBTQ youth in the United States. Applying international refugee law, this Article assesses whether the failure of U.S. schools and governments to protect children who are victims of physical and psychological bullying on account of their actual or perceived sexual orientation constitutes a violation of human rights such that were such students to seek asylum in another country they would likely qualify. In order to make this determination, the article assesses whether bullied LGBTQ students in the United States suffer harm severe enough to constitute persecution; whether the persecution occurs on account of the students’ membership in the particular social group of “transgender students and students with actual or perceived lesbian, gay or bisexual sexual orientation”; whether the federal government has refused to provide protection to such students by failing to pass legislation that prohibits discrimination on the basis of sexual orientation, or legislation specifically aimed at protecting LGBTQ students from violence and other forms of severe bullying in schools; and whether individual state and local governments have allowed the persecution of LGBTQ students to proliferate by curtailing, refusing to enforce, or refusing to implement policies aimed at protecting them. The Article concludes with a determination of whether bullied LGBTQ youth in some U.S. locations are victims of state-sponsored or state-permitted human rights violations and provides appropriate recommendations