Mahmoud v. McKnight -- Links through Dec. 2023

 

https://davidfishback.blogspot.com/2024/01/mahmoud-v-mcknight-links-through-dec.html

Basics on Mahmoud v. McKnight

Early reporting on the Storybook protests

https://moco360.media/2023/06/30/no-opt-out-for-lgbtq-storybooks-mcps-doubles-down-on-policy/

 

Factual background (July 1, 2023)

https://davidfishback.blogspot.com/2023/06/the-facts-about-controversy-over-mcps.html

 

More factual background analysis  (July 11, 2023)

https://davidfishback.blogspot.com/2023/07/maryland-matters-commentary-we-cant-opt.html

 

More factual background and analysis (August 4, 2023)

https://davidfishback.blogspot.com/2023/09/moco360-opinion-moco-lgbtq-opt-out.html and https://moco360.media/2023/08/04/moco-lgbtq-opt-out-debate-must-focus-on-facts/

 

U.S. District Court decision denying plaintiffs’ motion for a preliminary injunction (August 24, 2023).

https://moco360.media/2023/08/24/no-injunction-issued-in-mcps-lgbtq-books-lawsuit/ and https://moco360.media/wp-content/uploads/2023/08/JUDGES-RULING.pdf

Lambda Legal/PFLAG Amicus brief to 4th Circuit. Early reporting on the Storybook protests

https://moco360.media/2023/06/30/no-opt-out-for-lgbtq-storybooks-mcps-doubles-down-on-policy/

 

Factual background (July 1, 2023)

https://davidfishback.blogspot.com/2023/06/the-facts-about-controversy-over-mcps.html

 

More factual background analysis  (July 11, 2023)

https://davidfishback.blogspot.com/2023/07/maryland-matters-commentary-we-cant-opt.html

 

More factual background and analysis (August 4, 2023)

https://davidfishback.blogspot.com/2023/09/moco360-opinion-moco-lgbtq-opt-out.html and https://moco360.media/2023/08/04/moco-lgbtq-opt-out-debate-must-focus-on-facts/

 

U.S. District Court decision denying plaintiffs’ motion for a preliminary injunction (August 24, 2023).

https://moco360.media/2023/08/24/no-injunction-issued-in-mcps-lgbtq-books-lawsuit/ and https://moco360.media/wp-content/uploads/2023/08/JUDGES-RULING.pdf

 

Lambda Legal/PFLAG Amicus Brief to United States Court of Appeals for the Fourth Circuit. (see below)

 

Report on oral argument before a panel of the United States Court of Appeals for the Fourth Circuit (Dec. 5, 2023)

https://www.washingtonpost.com/dc-md-va/2023/12/05/opt-out-montgomery-lgbtq-storybooks/?fbclid=IwAR2oBlyhBtVdCrU9KgjQSNuJwRI0D49BlK2iAV8ghW2xDFas_i8LHexina4

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No. 23-1890

In the United States Court of Appeals for the Fourth Circuit

TAMER MAHMOUD; ENAS BARAKAT; JEFF ROMAN; SVITLANA ROMAN; CHRIS PERSAK; MELISSA PERSAK, in their individual capacities and ex rel. their minor children; KIDS FIRST, an unincorporated association,

Plaintiffs-Appellants,

v.

MONIFA B. MCKNIGHT; SHEBRA EVANS; LYNNE HARRIS; GRACE RIVERA-OVEN; KARLA SILVESTRE; REBECCA SMONDROWSKI; BRENDA WOLFF; JULIE YANG; MONTGOMERY COUNTY BOARD OF EDUCATION,

Defendants-Appellees.

On Appeal from the United States District Court for the District of Maryland The Honorable Deborah L. Boardman
District Court Case No. 8:23-cv-1380

BRIEF OF AMICI CURIAE LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC.; GLBTQ LEGAL ADVOCATES & DEFENDERS; NATIONAL CENTER FOR LESBIAN RIGHTS; HUMAN RIGHTS CAMPAIGN FOUNDATION; THE TREVOR PROJECT, INC; GLSEN, INC.; PFLAG, INC. AND PFLAG REGIONAL CHAPTERS; EQUALITY NORTH CAROLINA; SOUTH CAROLINA EQUALITY, INC.; MOCO PRIDE CENTER; FCPS PRIDE; RAINBOW YOUTH ALLIANCE; SMYAL; WHITMAN-WALKER HEALTH; AND WHITMAN-WALKER INSTITUTE IN SUPPORT OF DEFENDANTS-APPELLEES AND AFFIRMANCE

Karen L. Loewy
LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC.
1776 K Street NW, 8th Floor Washington, DC 20006
(202) 804-6245 kloewy@lambdalegal.org

Jeffrey M. Gutkin
Reece Trevor
COOLEY LLP
3 Embarcadero Center, 20th Floor San Francisco, CA 94111

(415) 693 2000 jgutkin@cooley.com rtrevor@cooley.com

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Paul D. Castillo
LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC.
3500 Oak Lawn Avenue, Suite 500 Dallas,TX 75219
(214) 302-2216 pcastillo@lambdalegal.org

Mary L. Bonauto
Gary D. Buseck
GLBTQ LEGAL ADVOCATES & DEFENDERS
18 Tremont St., Suite 950 Boston, MA 02108
(617) 426 1350 mbonauto@glad.org gbuseck@glad.org

Urvashi Malhotra COOLEY LLP
3175 Hanover Street Palo Alto, CA (650)843-5000 umalhotra@cooley.com

Shannon Minter
Christopher F. Stoll
NATIONAL CENTER FOR LESBIAN RIGHTS 870 Market St., Suite 370
San Francisco, CA 94102
(415) 392-6257
sminter@nclrights.org cstoll@nclrights.org

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TABLE OF CONTENTS

INTRODUCTION & INTEREST OF AMICI ........................................................ 1 ARGUMENT

1. All Students Benefit From A School Climate That Promotes Acceptance And Respect. .................................................................. 2

2. LGBTQ Young People Face Particular Risks, Including In
   Schools. ............................................................................................. 5

3. The Storybooks Advance Appellees’ Compelling Interest In
   Ensuring A Safe, Supportive School Environment In Which All Students Can Thrive........................................................................... 9

CONCLUSION ....................................................................................................18 APPENDIX A.......................................................................................................19 CERTIFICATE OF COMPLIANCE ....................................................................20 CERTIFICATE OF SERVICE..............................................................................21

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Cases

Ambach v. Norwick,

TABLE OF AUTHORITIES

441 U.S. 68 (1979) ..........................................................................................10

Bethel Sch. Dist. No. 403 v. Fraser,
478 U.S. 675 (1986).........................................................................................11

Colin ex rel. Colin v. Orange Unified Sch. Dist.,
83 F. Supp. 2d 1135 (C.D. Cal. 2000) ..............................................................12

Gonzalez Through Gonzalez v. Sch. Bd. of Okeechobee Cnty.,
571 F. Supp. 2d 1257 (S.D. Fla. 2008).............................................................12

Parker v. Hurley,
514 F.3d 87 (1st Cir. 2008) ..............................................................................11

Statutes

Md. Code Regs. 13A.01.04.03 ................................................................................9

Other Authorities

Michael J. Pellicane & Jeffrey A. Ciesla, Associations between
minority stress, depression, and suicidal ideation and attempts in
transgender and gender diverse (TGD) individuals: Systematic
review and meta-analysis, 91 Clinical Psych. Rev. 102113 (2022) ....................6

First Amendment ..................................................................................................16

Antonya M. Gonzalez et al., Reducing Children's Implicit Racial Bias
Through Exposure to Positive Out-Group Exemplars, 88 Child
Development 123 (2017) .................................................................................16

April J. Ancheta et al., The Impact of Positive School Climate on
Suicidality and Mental Health Among LGBTQ Adolescents: A
Systematic Review, 37 J. Sch. Nursing 75 (2021)...............................................6

Ctrs. for Disease Control & Prevention, School Connectedness:
Strategies for Increasing Protective Factors Among Youth (2009) ....................4

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TABLE OF AUTHORITIES (Continued)

Cynthia Lee, The Gay Panic Defense, 42 U.C. Davis L. Rev. 471
(2008) ..............................................................................................................13

Didier Jourdan et al., Supporting every school to become a foundation
for healthy lives, 5 Lancet Child & Adolescent Health 295 (2021) ....................4

Elena Monoyiou & Simoni Symeonidou, The wonderful world of
children's books? Negotiating diversity through children's
literature, 20 Int'l J. Inclusive Educ. 588 (2015) ..............................................10

Emile Lester & Patrick S. Roberts, Learning About World Religions in
Modesto, California: The Promise of Teaching Tolerance in Public
Schools, 4 Politics & Religion 264 (2011) .......................................................16

Emily A. Greytak, Joseph G. Kosciw, & Madelyn J. Boesen; Putting
the “T” in “Resource”: The Benefits of LGBT-Related School
Resources for Transgender Youth, 10 J. LGBT Youth 45 (2013).....................15

Experiences of Students with LGBTQ+ Caregivers and their Families
in K-12 Schools, GLSEN (2023)........................................................................8

Fed. R. App. P. 29(a)(4)(E).....................................................................................1

Hilary Burdge et al., Implementing Lessons That Matter: The Impact
of LGBTQ-Inclusive Curriculum on Student Safety, Well-Being,
and Achievement, GSA Network (2013),
https://gsanetwork.org/wp- content/uploads/2018/08/Implementing_Lessons.pdf...............................7, 8, 15

Human Rights Campaign, We Are Here: Understanding the Size of
the LGBTQ+ Community (2021)......................................................................14

Joseph A. Durlak et al., The Impact of Enhancing Students' Social and
Emotional Learning: A Meta-Analysis of School-Based Universal
Interventions, 82 Child Dev. 405 (2011) ............................................................3

Joseph G. Kosciw et al., The 2019 National School Climate Survey:
The Experiences of Lesbian, Gay, Bisexual, Transgender, and
Queer Youth in Our Nation's Schools, GLSEN (2020).....................................15

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TABLE OF AUTHORITIES (Continued)

Joseph G. Kosciw et al., The 2021 National School Climate Survey:
The Experiences of LGBTQ+ Youth in Our Nation's Schools,
GLSEN (2022)...................................................................................................7

Kari McDonald, Social Support and Mental Health in LGBTQ
Adolescents: A review of the literature, 39 Issues in Mental Health
Learning (2018) .................................................................................................6

Laura Baams et al., Comprehensive Sexuality Education as a
Longitudinal Predictor of LGBTQ Name-Calling and Perceived
Willingness to Intervene in School, 46 J. Youth Adolescence 931
(2017) ..............................................................................................................11

Mary L. Bonauto & Arielle B. Kristan, Discrimination and
Harassment Based on Sexual Orientation and Gender Identity, EL
MA-CLE 12-1 (2022) ......................................................................................12

Maryland College and Career Ready Standards Framework: Reading
Literature PreK................................................................................................13

Montgomery Cnty. Pub. Schs., 2022-2023 Guidelines for Respecting
Religious Diversity (2022) ....................................................................... 5, 9, 10

Nanette Gartrell & Henry Bos, US National Longitudinal Lesbian
Family Study: Psychological Adjustment of 17-Year-Old
Adolescents, 126 Pediatrics (2010).................................................................8, 9

Nat’l Council for the Social Studies, The College, Career, and Civic
Life (C3) Framework for Social Studies State Standards: Guidance
for Enhancing the Rigor of K-12 Civics, Economics, Geography,
and History (2013)...........................................................................................14

Organization for Econ. Co-operation and Dev., Equity and Inclusion
in Education: Finding Strength through Diversity (2023) ..................................4

Paddy C. Favazza & Samuel L. Odom, Promoting Positive Attitudes
of Kindergarten-Age Children Toward People with Disabilities, 63
Exceptional Children 405 (1997) .....................................................................16

Policy: Nondiscrimination, Equity, and Cultural Proficiency, Board of
Education of Montgomery County (2021)..........................................................9

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TABLE OF AUTHORITIES (Continued)

Quick Guide on Making School Climate Improvements, Nat’l Ctr. on
Safe Supportive Learning Env’ts (2d ed. 2018)..................................................2

Sari L. Reisner et. al., Addressing LGBTQ Student Bullying in
Massachusetts Schools: Perspectives of LGBTQ Students and
School Health Professionals, 21 Prevention Sci. 408 (2020)..............................7

School Climate Improvement, Nat’l Ctr. on Safe Supportive Learning
Env’ts, https://safesupportivelearning.ed.gov/school-climate-
improvement ......................................................................................................3

Shannon D. Snapp et al., LGBTQ-inclusive curricula: why supportive
curricula matter, 15 Sex Education 580 (2015), ........................................11, 14

Sophie Maxwell et al., The Impact of School Climate and School
Identification on Academic Achievement: Multilevel Modeling with
Student and Teacher Data, 8 Frontiers in Psych. 1 (2017) .................................5

Suzanne B. Goldberg, Sticky Intuition and the Future of Sexual
Orientation Discrimination, 57 UCLA L. Rev. 1375 (2010)............................13

The Trevor Project, 2022 National Survey on LGBTQ Youth Mental
Health (2022).....................................................................................................6

U.S. Dep’t of Educ., Guiding Principles for Creating Safe, Inclusive,
Supportive, and Fair School Climates (Mar. 2023)............................................3

U.S. Dep’t of Educ. Off. of Elementary and Secondary Educ., A
Parent and Educator Guide to School Climate Resources (Apr. 10,
2019) .............................................................................................................3, 5

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INTRODUCTION & INTEREST OF AMICI1
Amici curiae—34 organizations comprising parents, students, educators, civil

rights advocates, and health care and suicide prevention service providers— represent, support, and provide health services to lesbian, gay, bisexual, transgender, and queer/questioning (“LGBTQ”) people throughout Montgomery County, this Court’s jurisdiction, and the nation. As part of their various missions, amici are committed to ensuring that children and young people have access to full and equitable educational, social, economic, and other opportunities, and that their mental and physical wellbeing are protected. Schools across the country, including the Montgomery County public schools at the core of this litigation, will play a pivotal role in LGBTQ young people’s lives, whether that role is helpful or harmful. Drawing on their experience and expertise in this field, amici seek to provide this Court a broad and empirically grounded view of the landscape of LGBTQ youths’ lives, the challenges many of them face, and the critical importance of inclusive curricula like the books at issue in this litigation to create a school climate where all students can safely and effectively learn.

1 All parties have consented to the filing of this brief. No counsel for a party authored this brief in whole or in part and no person other than amici or their counsel made a monetary contribution to the preparation or submission of this brief. See Fed. R. App. P. 29(a)(4)(E). A complete list of amici appears as Appendix A to this brief.

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Amici’s purpose in this brief is twofold. First, amici provide an evidence-

based overview of the importance of welcoming, respectful school climates for every

student—but especially for LGBTQ students, who face disparate and at times dire

risks when their peers do not view them with acceptance and humanity. As the

research amply demonstrates, inclusive curricula like the materials that Appellants

challenge (the “Storybooks”) are integral to creating such a climate for LGBTQ

students and those students with LGBTQ parents. Second, while amici urge this

Court to affirm the District Court’s well-reasoned conclusions that Appellants have

failed to allege any burden on their free exercise of religion and that their substantive

due process claims fail under rational basis review, amici also submit that, should

this Court disagree and apply strict scrutiny, Appellees have established a

sufficiently compelling government interest to warrant affirmance.

I. All Students Benefit From A School Climate That Promotes Acceptance And Respect.

For decades, educators and policymakers have recognized the importance of creating optimal “conditions for learning” in schools, and that this includes “support[ing] physical and emotional safety, connection and support, and engagement.” Quick Guide on Making School Climate Improvements, Nat’l Ctr. on Safe Supportive Learning Env’ts (2d ed. 2018), at 1, https://safesupportivelearning.ed.gov/sites/default/files/SCIRP/NCSSLE_SCIRP_ QuickGuide508%20gdc.pdf. Often referred to as a school’s “climate,” this dynamic

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describes “a school’s attention to fostering safety; promoting a supportive academic, disciplinary, and physical environment; and encouraging and maintaining respectful, trusting, and caring relationships throughout the school community no matter the setting—from Pre-K/Elementary School to higher education.” School Climate Improvement, Nat’l Ctr. on Safe Supportive Learning Env’ts, https://safesupportivelearning.ed.gov/school-climate-improvement. Accepting and tolerant school climates are important at every level, but especially in primary and secondary schools, which are an influential setting for children to learn social skills and to cultivate responsibility, accountability, and independence. See Joseph A. Durlak et al., The Impact of Enhancing Students’ Social and Emotional Learning: A Meta-Analysis of School-Based Universal Interventions, 82 Child Dev. 405, 417–19 (2011).

When a school “effectively attends to all the social, emotional, and academic support needs of its students,” the benefits are real and substantial across the board. U.S. Dep’t of Educ. Off. of Elementary and Secondary Educ., A Parent and Educator Guide to School Climate Resources, (April 10, 2019), at 2. School climates that foster a sense of belonging and community not only provide a more supportive learning environment in which children learn to respect those who differ from them, but also report better test scores, graduation rates, student engagement, mental and physical health, and brain development. U.S. Dep’t of Educ., Guiding

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Principles for Creating Safe, Inclusive, Supportive, and Fair School Climates, (MaR. 2023), at 7–8 (noting the importance of school climates that “encourage and maintain respectful, trusting, and caring relationships throughout the school community”); see also Organization for Econ. Co-operation and Dev., Equity and Inclusion in Education: Finding Strength through Diversity, (2023), at 248 (“Research indicates that a positive school climate promotes students’ abilities to learn . . . with a number of studies having shown that school climate is directly related to academic achievement, at all school levels”); Ctrs. for Disease Control & Prevention, School Connectedness: Strategies for Increasing Protective Factors Among Youth,(2009), at 7 (discussing the importance of “[a] positive school environment . . . characterized by caring and supportive interpersonal relationships; opportunities to participate in school activities and decision-making; and shared positive norms, goals, and values.”).

Not surprisingly, negative school climates characterized by a lack of support, safety, and respect among students produce the opposite effect. See, e.g., Didier Jourdan et al., Supporting every school to become a foundation for healthy lives, 5 Lancet Child & Adolescent Health 295, 295 (2021). As the federal Department of Education reports, “research indicates that schools with negative school climates”— those that do not “maintain[] respectful, trusting, and caring relationships throughout the school community”—“adversely affect student health, wellbeing and

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achievement.” U.S. Dep’t of Educ. Off. of Elementary and Secondary Educ., A Parent and Educator Guide to School Climate Resources, (Apr. 10, 2019), at 2, 5; see also Sophie Maxwell et al., The Impact of School Climate and School Identification on Academic Achievement: Multilevel Modeling with Student and Teacher Data, 8 Frontiers in Psych. 1, (2017), at 3 (“[A] negative school climate has been found to reduce student participation in school activities and student learning.”). Even though a school’s students may experience a negative climate in different ways, the likelihood of poor outcomes remains higher for all of them. For example, as Montgomery County Public Schools have recognized, “[s]tudents who are bullied, students who bully, and students who are bystanders to bullying are at risk of a range of negative health, safety, and educational outcomes.” Montgomery Cnty. Pub. Schs., 2022-2023 Guidelines for Respecting Religious Diversity, (2022), at 6.

II. LGBTQ Young People Face Particular Risks, Including In Schools.

Supportive schools and their protective, nurturing influence are important to every child, including LGBTQ students, who face outsized risks of all kinds, from bullying to isolation to self-doubt. The statistics regarding the challenges for LGBTQ students paint a clear and troubling picture for policymakers and administrators who aim to create a safe and effective learning environment for all students.

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Due to the challenges of living in a culture in which they are often marginalized, mental and physical health risks among LGBTQ young people are significantly higher than those among the general population. Studies consistently show that LGBTQ youth experience depression, disordered eating, and self-harm at far higher rates than their peers. See Kari McDonald, Social Support and Mental Health in LGBTQ Adolescents: A review of the literature, 39 Issues in Mental Health Learning, (2018), at 16; Michael J. Pellicane & Jeffrey A. Ciesla, Associations between minority stress, depression, and suicidal ideation and attempts in transgender and gender diverse (TGD) individuals: Systematic review and meta- analysis, 91 Clinical Psych. Rev. 102113, (2022), at 6-7. Consistent with these findings, nearly 75% of LGBTQ youth surveyed in a major 2022 study reported experiencing anxiety symptoms, with nearly half saying that they had considered suicide. See The Trevor Project, 2022 National Survey on LGBTQ Youth Mental Health, (2022), at 8 (hereinafter “2022 National Survey”); see also April J. Ancheta et al., The Impact of Positive School Climate on Suicidality and Mental Health Among LGBTQ Adolescents: A Systematic Review, 37 J. Sch. Nursing 75, 77 (2021) (reporting similar figures). And these serious issues often go untreated. Nearly 60% of LGBTQ youth reported that they wanted to obtain help from a mental health professional but had been unable to receive it over the past year. 2022 National Survey at 11.

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Negative school climates often seriously exacerbate these problems. Anti- LGBTQ language is rampant in U.S. schools, with 90% of students surveyed in the 2021-22 school year reporting that they had heard homophobic remarks in school. Joseph G. Kosciw et al., The 2021 National School Climate Survey: The Experiences of LGBTQ+ Youth in Our Nation’s Schools, GLSEN (2022), at xvi (hereinafter “2021 National School Climate Survey”). For a supermajority of students, this kind of harassment had been directed at them: 76% had experienced “in-person verbal harassment” at school. Id. Nearly one-third of survey respondents had been physically harassed, and over half had experienced some kind of sexual harassment, including unwanted touching or sexual remarks. Id. at xvi-xvii; see also, e.g., Sari L. Reisner et. al., Addressing LGBTQ Student Bullying in Massachusetts Schools: Perspectives of LGBTQ Students and School Health Professionals, 21 Prevention Sci. 408 (2020) (“Lesbian, gay, bisexual, transgender, queer/questioning (LGBTQ) youth face disparities in bullying victimization that are associated with higher rates of physical injury, psychological distress, and even suicide.”). As a result, LGBTQ students often avoid school activities, classroom instruction, and particular settings that present heightened risks, like bathrooms, lockers rooms, and gym classes. 2021 National School Climate Survey, at 10-11. This, in turn, produces worse educational outcomes, including lower GPAs and decreased likelihood of pursuing higher education. Id. at xviii-xx; see also Hilary Burdge et al., Implementing Lessons That

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Matter: The Impact of LGBTQ-Inclusive Curriculum on Student Safety, Well-Being, and Achievement, GSA Network (2013), at 9, https://gsanetwork.org/wp- content/uploads/2018/08/Implementing_Lessons.pdf (hereinafter “Implementing Lessons that Matter”) (“[N]ot only is the student’s ability to focus, complete assignments, and attend class compromised, but also she ultimately faces the possibility of a failing grade and/or inability to graduate.”).

Students with LGBTQ parents also face hostility in schools with negative climates, regardless of their personal sexual orientation or gender identity, including at very young ages. One national longitudinal study found that one-half of children of lesbian parents reported that they had experienced homophobic teasing before the age of 10. Nanette Gartrell & Henry Bos, US National Longitudinal Lesbian Family Study: Psychological Adjustment of 17-Year-Old Adolescents, 126 Pediatrics, 28 (2010). In a more recent survey of 455 students aged 14 and up with at least one LGBTQ+ parent or caregiver, 86.8% reported hearing negative comments about LGBTQ+ parents in general and 80.25% reported hearing negative comments about their own family in particular. Experiences of Students with LGBTQ+ Caregivers and their Families in K-12 Schools, GLSEN (2023), at 16, 19, 23. Over two-thirds of participants were verbally harassed at school for having an LGBTQ parent, and over 20% of those students experienced harassment frequently or often. Id. at 24. As to exclusion from a school or classroom activity,

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96.6% reported this exclusion had occurred because of having an LGBTQ+ parent

and 68.6% reported being discouraged by a teacher, principal or school staff from

talking about their LGBTQ+ parent or parents at school. Id. at 25.2

III. The Storybooks Advance Appellees’ Compelling Interest In Ensuring A Safe, Supportive School Environment In Which All Students Can Thrive.

Consistent with their regulatory mandate to secure for all students “the right to educational environments that are” “[s]afe,” “[a]ppropriate for academic achievement,” and “[f]ree from any form of harassment,” Appellees have a compelling interest in each and every student being offered curricula that advance these values for all members of their educational community. Md. Code Regs. 13A.01.04.03. Montgomery County Public Schools have taken important steps to promote this interest by ensuring that its English Language Arts curriculum represents people with different religious and racial backgrounds. Guidelines for Respecting Religious Diversity, at 4; Policy: Nondiscrimination, Equity, and Cultural Proficiency, Board of Education of Montgomery County (2021), at 5-6. The district’s commitment to curricula that represent LGBTQ families is no different. Particularly in light of the greater risks and dangers that LGBTQ students and students with LGBTQ parents face at school and in society, the Storybooks are

2 One student explained, “We had to share some basic information about our family, and I said that I had two moms. The students made fun of me, and the teacher told me that I couldn’t participate in this activity anymore because I ‘spread propaganda.’”

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an essential part of a curriculum that advances its goal of creating an inclusive environment that supports academic achievement.

Far from “indoctrinating” students or forcing them to adopt a particular viewpoint, the Storybooks and related curricula like these “help young children appreciate people with individual characteristics that differ from their own.” Elena Monoyiou & Simoni Symeonidou, The wonderful world of children’s books? Negotiating diversity through children’s literature, 20 Int’l J. Inclusive Educ. 588, 589 (2015); see also, e.g., Guidelines for Respecting Religious Diversity at 6 (“With great diversity in our community, there is much that we can learn from each other when there is a culture of respect, openness, and tolerance.”). This bringing together of diverse elements of our society is a quintessential purpose of public schools. Ambach v. Norwick, 441 U.S. 68, 77 (1979). For instance, the principal message of Intersection Allies is that “kids’ lives are unique, as you’ll soon be aware.” JA 144. The book goes on to present short portraits of children with many different characteristics and backgrounds: one uses a wheelchair, one is a bilingual girl who helps her mother at work after school, one wears a hijab, one emigrated from Korea, one prefers wearing a superhero cape instead of “skirts and frills,” and so on. JA 144-186. Born Ready describes the challenges, resilience, and triumph of “a boy named Penelope,” who loves “baggy blue jeans,” considers himself “a ninja,” and tells his family that he is a boy—even as his big brother insists, “This doesn’t make

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sense. You can’t become a boy. You have to be born one.” JA 241-276. And Uncle Bobby’s Wedding tells the story of a girl whose fears that she will lose her favorite uncle when he gets married are assuaged “after spending a fun-filled day” with her uncle and his male fiancé. See JA 108-135.

Simply put, instructional materials like the Storybooks—those that portray LGBTQ people and many other characters and facilitate open, nonjudgmental conversations about these issues—serve as “a ‘mirror’ for the person, and a ‘window’ into the lives of others,” helping students to “see themselves and learn about others through their curricula.” Laura Baams et al., Comprehensive Sexuality Education as a Longitudinal Predictor of LGBTQ Name-Calling and Perceived Willingness to Intervene in School, 46 J. Youth Adolescence 931, 932 (2017). They are a vital tool for promoting tolerance and for preparing students for citizenship within the full diversity of the community. See Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 681–85 (1986); Parker v. Hurley, 514 F.3d 87, 106 (1st Cir. 2008).

Appellants seek to fundamentally distort these stories, suggesting that they are a form of sexuality education, from which permitting opt outs is already required. See Appellants’ Opening Br. at 25-26. While it is accurate that LGBTQ inclusion in health education classes similarly promotes school climate and safety, see Shannon D. Snapp et al., LGBTQ-inclusive curricula: why supportive curricula matter, 15 Sex Education 580, 590 (2015), that is not the issue before this Court.

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Appellants cannot colorably characterize the Storybooks as health or sexuality education curricula, any more than Disney stories and fairy tales that portray the familial ties between non-LGBTQ people are sexuality education. Appellants’ attempts to conflate the two exploit stereotypes that hyper-sexualize LGBTQ people and reductively limit LGBTQ identity to sexuality in ways that are not done to those with other identities.

Courts have recognized and rejected this double standard in schools for decades, refusing to permit differential treatment of LGBTQ students and content based on these impermissible stereotypes. See, e.g., Gonzalez Through Gonzalez v. Sch. Bd. of Okeechobee Cnty., 571 F. Supp. 2d 1257, 1266–67 (S.D. Fla. 2008) (rejecting the notion that “a club whose stated purpose is to promote tolerance towards non-heterosexuals within the student body promotes the premature sexualization of students”); Colin ex rel. Colin v. Orange Unified Sch. Dist., 83 F. Supp. 2d 1135, 1148 (C.D. Cal. 2000) (requirement that only gay student group must state that it would not talk about sexual activities at its meetings validated stereotypes that “gay people are inherently more sexual than others” even though you can “talk about being gay without having to talk about sex, just as you can talk about being heterosexual without talking about sex.”). The same legal rejection of treating LGBTQ identities as inherently more sexual than others applies in contexts other than schools as well. See, e.g., Mary L. Bonauto & Arielle B. Kristan,

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Discrimination and Harassment Based on Sexual Orientation and Gender Identity, EL MA-CLE 12-1 (2022), at 23(“An employee who disclosed ‘I’m a newlywed’ would not be accused—as is sometimes the case with LGBTQ employees who state ‘I’m gay’ or ‘I’m transgender’—of discussing their sex life or engaging in sexual conduct or inviting revelations of their coworkers’ sex lives.”); Suzanne B. Goldberg, Sticky Intuition and the Future of Sexual Orientation Discrimination, 57 UCLA L. Rev. 1375, 1391 (2010) (addressing the policy influence of the “hypersexualization of gay people, relative to heterosexuals, in the public imagination” such that “sexual acts are often treated as the defining feature of being gay.”); Cynthia Lee, The Gay Panic Defense, 42 U.C. Davis L. Rev. 471, 476 (2008) (acknowledging controversy about “gay panic” defenses as reinforcing and promoting negative stereotypes of gay men as sexual deviants and aggressors). Treating these Storybooks as falling within the sexuality education framework solely because they discuss LGBTQ identities perpetuates the same pernicious essentialization and stereotyping of LGBTQ people and undermines the diversity education goals that Maryland’s English Language Arts curriculum aims to fulfill. See, e.g., Maryland College and Career Ready Standards Framework: Reading Literature PreK at 4 (providing that curricula should enable students to “listen to and discuss a wide variety of complex literary texts . . . representing diverse cultures, perspectives and ethnicities”).

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With at least 8% of Americans identifying as LGBTQ, students, schools, families, and society at large benefit when young people recognize those with differing “individual characteristics” as full humans who deserve to be treated with respect and civility. Human Rights Campaign, We Are Here: Understanding the Size of the LGBTQ+ Community (2021), at 2. As the National Council for the Social Studies puts it in discussing the analogous benefits of studying a diversity of religious traditions in public schools, these types of curricula empower students “to navigate diverse and shifting cultural values, to engage respectfully with diverse neighbors, and to resist common misunderstandings that have negative real-world consequences.” Nat’l Council for the Social Studies, The College, Career, and Civic Life (C3) Framework for Social Studies State Standards: Guidance for Enhancing the Rigor of K-12 Civics, Economics, Geography, and History (2013), at 93; see also JA 154 (Intersection Allies page depicting Adilah, a child who wears a hijab, with the caption “Some give, some chant, some sing, some pray. / My hijab is my choice—you can choose your own way.”).

Accordingly, as a substantial body of research confirms, curricula like the Storybooks help create positive school climates that benefit all students and provide particularly powerful mitigation of the negative outcomes that so many LGBTQ youth face. Schools that feature LGBTQ-inclusive curricula like the Storybooks experience “overall less bullying than schools with unsupportive curricula.” Snapp,

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LGBTQ-inclusive curricula at 587. Similarly, “attending a school that included positive representations of LGBTQ topics in the curriculum was related to less frequent use of anti-LGBTQ language,” which (as noted above) is otherwise all too common. Joseph G. Kosciw et al., The 2019 National School Climate Survey: The Experiences of Lesbian, Gay, Bisexual, Transgender, and Queer Youth in Our Nation’s Schools, GLSEN (2020), at 73. And 66.9% of LGBTQ students at schools with inclusive curricula describe their classmates as “somewhat accepting” or “very accepting” of them—nearly double the rate in schools without these curricula. Id. at 75. These non-LGBTQ students are, in turn, more likely to intervene or support their LGBTQ classmates in the face of harmful and unsafe behavior at school, ranging from verbal slurs to physical attacks. Id. LGBTQ students at schools with inclusive curricula likewise experience lower rates of absenteeism, better grades, and a greater likelihood of attending college or other post-secondary education. Id. at 74-75; Emily A. Greytak, Joseph G. Kosciw, & Madelyn J. Boesen; Putting the “T” in “Resource”: The Benefits of LGBT-Related School Resources for Transgender Youth, 10 J. LGBT Youth 45, 45 (2013). Simply put, “the implementation of LGBTQ-inclusive curriculum promotes greater feelings of student safety, health, and well-being,” with measurably positive results for educational and social outcomes. Implementing Lessons that Matter at 25.

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Empirical research on curricula that highlight people from other historically marginalized backgrounds show similar beneficial effects among students of all backgrounds. One study, for example, determined that “children’s implicit pro- White bias was reduced following exposure to positive Black exemplars,” which researchers presented through a series of “vignettes”—essentially, short age- appropriate stories closely analogous to the Storybooks. Antonya M. Gonzalez et al., Reducing Children’s Implicit Racial Bias Through Exposure to Positive Out- Group Exemplars, 88 Child Development 123, 123, 215 (2017). Likewise, kindergarten-age children who spent time with and read books featuring people with disabilities showed significantly greater acceptance of others’ disability status. Paddy C. Favazza & Samuel L. Odom, Promoting Positive Attitudes of Kindergarten-Age Children Toward People with Disabilities, 63 Exceptional Children 405 (1997). Another study found that teaching children about a variety of religious traditions in a world religions course “increased students’ . . . tolerance for religious diversity, and for First Amendment rights in general.” Emile Lester & Patrick S. Roberts, Learning About World Religions in Modesto, California: The Promise of Teaching Tolerance in Public Schools, 4 Politics & Religion 264, 265 (2011).

Under Appellants’ proposed rule, any parent with a religious objection to inclusive curricula could preclude their child’s participation, no matter the

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curriculum’s demonstrable benefit to student well-being and educational success. That threatens to seriously undermine the compelling state interest in safe schools where every student has the chance to thrive. Students whose parents opted them out of these kinds of lessons would lose the chance to learn about those whose identities and experiences may differ from their own—with potentially negative effects for the entire school climate and community, and especially their LGBTQ peers. Moreover, were a substantial cohort of students to collectively and vocally opt-out, such developments could cause rifts among large groups of students with different views and, even worse, could contribute to exactly the kind of “us versus them” thinking that research convincingly proves is detrimental to educational outcomes.

Again, the rationale for rejecting Appellants’ views is clear and multi-faceted.

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CONCLUSION

For the foregoing reasons, amici respectfully urge this Court to recognize the importance of LGBTQ-inclusive curricula like Appellees’ and to affirm the District Court’s decision to deny Appellants’ motion for preliminary injunction.

October 30, 2023

Jeffrey M. Gutkin
Reece Trevor
COOLEY LLP
3 Embarcadero Center, 20th Floor San Francisco, CA 94111

(415) 693 2000 jgutkin@cooley.com rtrevor@cooley.com

Urvashi Malhotra COOLEY LLP
3175 Hanover Street Palo Alto, CA

(650) 843-5000 umalhotra@cooley.com

Shannon Minter
Christopher F. Stoll
NATIONAL CENTER FOR LESBIAN RIGHTS 870 Market St., Suite 370
San Francisco, CA 94102
(415) 392-6257
sminter@nclrights.org cstoll@nclrights.org

Respectfully submitted,

/s/ Karen L. Loewy

Karen L. Loewy
LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC.
1776 K Street NW, 8th Floor Washington, DC 20006
(202) 804-6245 kloewy@lambdalegal.org

Paul D. Castillo
LAMBDA LEGAL DEFENSE AND EDUCATION FUND, INC.
3500 Oak Lawn Avenue, Suite 500 Dallas, TX 75219
(214) 302-2216 pcastillo@lambdalegal.org

Mary L. Bonauto
Gary D. Buseck
GLBTQ LEGAL ADVOCATES & DEFENDERS
18 Tremont St., Suite 950 Boston, MA 02108
(617) 426 1350 mbonauto@glad.org gbuseck@glad.org

Counsel for Amici Curiae

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APPENDIX A

List of Amici Curiae

• Lambda Legal Defense and Education Fund, Inc.

• GLBTQ Legal Advocates & Defenders

• National Center for Lesbian Rights

• Human Rights Campaign Foundation

• The Trevor Project, Inc.

• GLSEN, Inc.

• PFLAG, Inc.

• PFLAG Regional Chapters

  o Metro DC PFLAG o PFLAG Aiken
  o PFLAG Anderson o PFLAG Apex

  o PFLAG Charlotte
  o PFLAG Concord-Kannapolis o PFLAG Greensboro
  o PFLAG Greenville
  o PFLAG Hampton Roads
  o PFLAG Hickory NC
  o PFLAG Lexington NC
  o PFLAG Pawleys Island
  o PFLAG Salisbury
  o PFLAG Salisbury-Rowan
  o PFLAG Southern Maryland o PFLAG Southern Pines
  o PFLAG Spartanburg
  o PFLAG Statesville
  o PFLAG Triangle

• Equality North Carolina

• South Carolina Equality, Inc.

• MoCo Pride Center

• FCPS Pride

• Rainbow Youth Alliance (RYA)

• Supporting and Mentoring Youth Advocates and Leaders (SMYAL)

• Whitman-Walker Health

• Whitman-Walker Institute

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CERTIFICATE OF COMPLIANCE

I, Karen L. Loewy, hereby certify that:
1. This brief complies with the type-volume limitation of Fed. R. App. P.29(a)(5) and 32(a)(7)(B) because it contains 3,828 words, excluding the parts of the brief exempted by Fed. R. App. P.32(f).
2. This brief complies with the typeface requirements of Fed. R. App. P.32(a)(5) and the type-style requirements of Fed. R. App. P.32(a)(6) because it has been prepared in a proportionally-spaced typeface using Microsoft Word in Times New Roman, size 14.

/s/ Karen L. Loewy

Karen L. Loewy

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CERTIFICATE OF SERVICE

I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Fourth Circuit by using the appellate CM/ECF system. I further certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system.

/s/ Karen L. Loewy

Karen L. Loewy

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UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

DISCLOSURE STATEMENT

•  In civil, agency, bankruptcy, and mandamus cases, a disclosure statement must be filed by all parties, with the following exceptions: (1) the United States is not required to file a disclosure statement; (2) an indigent party is not required to file a disclosure statement; and (3) a state or local government is not required to file a disclosure statement in pro se cases. (All parties to the action in the district court are considered parties to a mandamus case.)

•  In criminal and post-conviction cases, a corporate defendant must file a disclosure statement.

•  In criminal cases, the United States must file a disclosure statement if there was an

  organizational victim of the alleged criminal activity. (See question 7.)

•  Any corporate amicus curiae must file a disclosure statement.

•  Counsel has a continuing duty to update the disclosure statement.

No. _2_3_-_1_8_9_0___ Caption: T_a_m__e_r _M_a_h_m_o_u_d_,_e_t_a_l._v_._M_o_n_i_fa_B__. M__c_K_n_ig_h_t,_e_t_a_l.____________ Pursuant to FRAP 26.1 and Local Rule 26.1,

_S_e_e_a_tt_a_c_he_d__li_st_._________________________________________________________________ (name of party/amicus)

______________________________________________________________________________

who is __________a_m_i_c_i _________, makes the following disclosure: (appellant/appellee/petitioner/respondent/amicus/intervenor)

1. Is party/amicus a publicly held corporation or other publicly held entity? YES ✔ NO

2. Does party/amicus have any parent corporations? ✔ YES NO

   If yes, identify all parent corporations, including all generations of parent corporations:

   Whitman-Walker Health Center, Inc. is the parent corporation of amicus curiae Whitman-Walker Institute.

   No other amicus has any parent corporation.

3. Is 10% or more of the stock of a party/amicus owned by a publicly held corporation or other publicly held entity? YES ✔ NO If yes, identify all such owners:

12/01/2019 SCC - 1 -

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4. Is there any other publicly held corporation or other publicly held entity that has a direct financial interest in the outcome of the litigation? YES ✔ NO If yes, identify entity and nature of interest:

5. Is party a trade association? (amici curiae do not complete this question) YES ✔ NO If yes, identify any publicly held member whose stock or equity value could be affected substantially by the outcome of the proceeding or whose claims the trade association is pursuing in a representative capacity, or state that there is no such member:

6. Does this case arise out of a bankruptcy proceeding? YES ✔ NO If yes, the debtor, the trustee, or the appellant (if neither the debtor nor the trustee is a party) must list (1) the members of any creditors’ committee, (2) each debtor (if not in the caption), and (3) if a debtor is a corporation, the parent corporation and any publicly held corporation that owns 10% or more of the stock of the debtor.

7. Is this a criminal case in which there was an organizational victim? YES ✔ NO If yes, the United States, absent good cause shown, must list (1) each organizational
   victim of the criminal activity and (2) if an organizational victim is a corporation, the parent corporation and any publicly held corporation that owns 10% or more of the stock

   of victim, to the extent that information can be obtained through due diligence.

/s/ Karen L. Loewy

Signature: ____________________________________

Date: ___________________

Amici (see attached)

Counsel for: __________________________________

October 30, 2023

-2-

Print to PDF for Filing

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LIST OF AMICI CURIAE

•   Lambda Legal Defense and Education Fund, Inc.

•   GLBTQ Legal Advocates & Defenders

•   National Center for Lesbian Rights

•   Human Rights Campaign Foundation

•   The Trevor Project, Inc.

•   GLSEN, Inc.

•   PFLAG, Inc.

•   PFLAG Regional Chapters

  o MetroDCPFLAG o PFLAGAiken
  o PFLAGAnderson o PFLAGApex

  o PFLAGCharlotte
  o PFLAGConcord-Kannapolis o PFLAGGreensboro
  o PFLAGGreenville
  o PFLAGHamptonRoads
  o PFLAGHickoryNC
  o PFLAGLexingtonNC
  o PFLAGPawleysIsland
  o PFLAGSalisbury
  o PFLAGSalisbury-Rowan
  o PFLAGSouthernMaryland o PFLAGSouthernPines
  o PFLAGSpartanburg
  o PFLAGStatesville
  o PFLAGTriangle

•   Equality North Carolina

•   South Carolina Equality, Inc.

•   MoCo Pride Center

•   FCPS Pride

•   Rainbow Youth Alliance (RYA)

•   Supporting and Mentoring Youth Advocates and Leaders (SMYAL)

•   Whitman-Walker Health

•   Whitman-Walker Institute

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UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

APPEARANCE OF COUNSEL FORM

BAR ADMISSION & ECF REGISTRATION: If you have not been admitted to practice before the Fourth Circuit, you must complete and return an Application for Admission before filing this form. If you were admitted to practice under a different name than you are now using, you must include your former name when completing this form so that we can locate you on the attorney roll. Electronic filing by counsel is required in all Fourth Circuit cases. If you have not registered as a Fourth Circuit ECF Filer, please complete the required steps at Register for eFiling.

THE CLERK WILL ENTER MY APPEARANCE IN APPEAL NO. _2_3_-_1_8_9_0_______________________ as [ ]Retained [ ]Court-appointed(CJA) [ ]CJA associate [ ]Court-assigned(non-CJA) [ ]Federal Defender
[✔]Pro Bono [ ]Government

COUNSEL FOR: _______________________________________________________________________

__________________________________________________________________________________as the (party name)

(see attachment)

appellant(s) appellee(s) petitioner(s) respondent(s) ✔ amicus curiae intervenor(s) movant(s) /s/ Karen L. Loewy

______________________________________ (signature)

Please compare your information below with your information on PACER. Any updates or changes must be made through PACER’s Manage My Account.

________________________________________ Name (printed or typed)

_______________ Voice Phone

_______________ Fax Number

Karen L. Loewy

202-804-6245

________________________________________ Firm Name (if applicable)

Lambda Legal Defense & Education Fund

________________________________________

1776 K Street, NW, 8th Floor

________________________________________ Address

_________________________________ E-mail address (print or type)

Washington, DC 20006-2304

kloewy@lambdalegal.org

CERTIFICATE OF SERVICE (required for parties served outside CM/ECF): I certify that this document was served on ____________ by [ ] personal delivery; [ ] mail; [ ] third-party commercial carrier; or [ ] email (with written consent) on the following persons at the addresses or email addresses shown:

______________________________ ____________________________ Signature Date

1/28/2020 SCC

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Attachment to Appearance of Karen L. Loewy, Counsel for Amici Curaie

• Lambda Legal Defense and Education Fund, Inc.

• GLBTQ Legal Advocates & Defenders

• National Center for Lesbian Rights

• Human Rights Campaign Foundation

• The Trevor Project, Inc.

• GLSEN, Inc.

• PFLAG, Inc.

• PFLAG Regional Chapters

  o Metro DC PFLAG o PFLAG Aiken
  o PFLAG Anderson o PFLAG Apex

  o PFLAG Charlotte
  o PFLAG Concord-Kannapolis o PFLAG Greensboro
  o PFLAG Greenville
  o PFLAG Hampton Roads
  o PFLAG Hickory NC
  o PFLAG Lexington NC
  o PFLAG Pawleys Island
  o PFLAG Salisbury
  o PFLAG Salisbury-Rowan
  o PFLAG Southern Maryland o PFLAG Southern Pines
  o PFLAG Spartanburg
  o PFLAG Statesville
  o PFLAG Triangle

• Equality North Carolina

• South Carolina Equality, Inc.

• MoCo Pride Center

• FCPS Pride

• Rainbow Youth Alliance (RYA)

• Supporting and Mentoring Youth Advocates and Leaders (SMYAL)

• Whitman-Walker Health

• Whitman-Walker Institute