It’s Time For Queer Affirmative Action

When I was in high school, my school district adopted regulations that prevented queer students from having their sexual or gender identities disclosed without their consent.

The change was liberating. No longer fearful that a misplaced comment about my sexual identity would lead to parental rejection and housing insecurity, I expressed my queerness and authentically engaged with my education for the first time. I drew connections between course materials and queer history; I allowed my queerness to inform discussions with teachers; I explored intellectual passions that were related to my queer identity.

But now, my home state is trying to mandate that all school districts forcibly out their LGBTQ+ students.

It’s surreal to witness leaders attempt to deny students in positions like mine the chance to safely express their true identities. I feel worse when I realize the current reality of those like me: a generation of LGBTQ+ applicants, particularly those from communities of color and southern states, experiencing discriminatory legislation that prevents them from thriving in the admissions process.

The prevailing national assumption after Obergefell v. Hodges was that massive campaigns against LGBTQ+ community members were over. After decades of virulent anti-marriage equality legislation, the queer community secured legal recognition — and by extension, a degree of mainstream affirmation — from an institution that had historically sanctioned the view that same-sex conduct was so immoral it must be punished.

Of course, there were still attempts to deny LGBTQ+ people equality following Obergefell v. Hodges. But, with the Republican Party seemingly softening on anti-LGBTQ+ rhetoric and support for LGBTQ+ rights generally growing, those attempts were met with fierce and successful resistance: In 2017, for example, North Carolina’s infamous bathroom bill was repealed — perhaps due to the estimated billions of dollars North Carolina would’ve lost in business over 12 years.

Alas, the post-Obergefell optimism was misplaced. In recent years, anti-queer forces have pushed trans athlete bans in state legislatures. According to the president of a right-wing think tank that has funded several such bans, their goal was never to protect athletic parity; it was to “expose” transgender issues and get “opponents of the LGBT movement comfortable with talking about transgender issues.”

In other words, trans athlete bans were designed to normalize anti-trans rhetoric, starting the ball rolling on state legislation attacking transgender people.

Unfortunately, this strategy worked. Legislators were able to harness the anti-LGBTQ+ support of bans on athletics to propose restrictions affecting entire schools. In 2020 and 2021, attacks against queer youth were concentrated on student athletes. But in 2023, the targets have broadened to the very existence of transgender and queer students. Of the nearly 500 anti-LGBTQ+ bills — a record high — introduced this year, almost half focus on schools.

The uncomfortable reality is that the current generation of LGBTQ+ applicants is facing woefully discriminatory school environments that suppress their potential. From students forced back into the closet due to outing laws, to transgender students who must spend precious hours traveling across state lines to access life-saving care, queer students in states that attempt to deny their humanity simply do not have a fair shot in hyper-competitive admissions systems.

Harvard admissions officers reviewing these applicants are thus faced with a choice: They can evaluate them just as they would any other student, placing the queer student at a disadvantage, or they can account for the disparities the student faced simply because of their LGBTQ+ identity. The latter obviously requires an admissions process that is not blind to a student’s queer identity — otherwise known as queer affirmative action.

Of course, any proposal for queer-concious admissions policies — assuming that queer-conscious admissions face similar levels of scrutiny to race-conscious admissions — must grapple with the Students for Fair Admissions Inc. v. President & Fellows of Harvard College decision. I will not purport that a column written by a sophomore with no legal training can fully obviate these concerns. But, acceptable rationales may exist.

Traditionally, attempts to justify affirmative action rested on four interests: rectifying the effects of societal discrimination, boosting the historical underrepresentation in professional fields, increasing the number of professionals who will go on to practice in minority areas, and achieving the educational benefits that flow from a racially diverse campus.

The first three interests were rejected by the Supreme Court in Regents of the University of California v. Bakke in 1978 — but only in the context of race-based affirmative action.

Decades after Bakke, it may be fruitful to ground rationales for queer-conscious admissions in a university’s interest in rectifying societal discrimination. When Supreme Court Justice Lewis F. Powell Jr. rejected this interest in Bakke, he conceded that a university “certainly has a legitimate and substantial interest in ameliorating, or eliminating where feasible, the disabling effects of identified discrimination.” He rejected the interest not because it is illegitimate, but because it was far too unfocused.

For LGBTQ+ applicants, however, this interest can be sharply focused. Systemic racism is often baked into institutions rather than explicated by racist education policy, whereas anti-queer legislation directly names LGBTQ+ students as its target.

Obviously, this column skirts difficult questions: What does queer affirmative action look like in practice? What types of anti-queer legislation should trigger consideration of an applicant’s sexual and gender identity? Is there an appetite for any affirmative action program after SFFA v. Harvard?

It may be easier for Harvard to simply ignore these questions. But, if we ignore the plight of the discriminated queer student in admissions, our admissions office must recognize it is closing Harvard’s gates to students with experiences like mine.

Aaryan K. Rawal ’26 is a Government concentrator in Eliot House. His column, “Queer Queries,” runs biweekly on Tuesdays.