The Justice Department is getting involved in a case of high school bullying on behalf of a gay boy who was beaten up for being too feminine and the school did nothing. It's a great development, considering that the case was being tried by the New York Civil Liberties Union and the Justice Department is willing to argue that the teen was being beaten up for being too feminine, a violation of Title IX since stereotyping based on sex, they argue, is the same as sex discrimination.
Republicans who worked in the Civil Rights Division under previous administrations agree that this is a case conservatives generally would not make.
The Justice Department's argument hinges on a broad reading of the law known as Title IX. Title IX is typically used to protect students from gender discrimination, but in this case, Obama administration lawyers argue that the law also covers discrimination based on gender stereotypes -- that is to say, boys who are beaten up for being effeminate.
"They are making up a legal violation where there hasn't been one," says Roger Clegg of the Center for Equal Opportunity, who worked in the Civil Rights Division under President Reagan and the first President Bush. While he condemns bullying and harassment, Clegg disagrees with the Obama administration's interpretation of federal law in this case.
Well, part of the issue Republicans who worked in the Civil Rights Division might be having is that they don't believe in civil rights, which they refer to as special rights, often in scare quotes. When you work for an organization that you don't believe should exist, it means you're probably going to always be against it expanding its operation, no matter how justified.
This case involves some pretty brutal harassment:
Long before Jacob came out of the closet at age 14, he was harassed for being effeminate. According to court papers, kids threw food at him and told him to get a sex change. One student pulled out a knife and threatened to string Jacob up the flagpole. A teacher allegedly told Jacob to "hate himself every day until he changed."
One day, Jacob came home from school limping. That evening, he called his father from a party and said he had sprained his ankle at the party.
Sullivan described taking his son to the hospital: "It was a really bad sprain. They put a cast on it, gave him crutches. And shortly after that, I found out that it didn't happen at the party. It happened at the school, because somebody had pushed him down the stairs."
Over two years, Sullivan went to his son's school three or four times a week to talk with the principal. According to court papers, officials did nothing. The harassment became so bad that Jacob changed school districts. With the help of the New York Civil Liberties Union, Sullivan eventually sued.
The school isn't commenting, of course, but this sort of harassment isn't hard to imagine, especially if a gay kid is the victim. Depending on where he lives, most of the teachers might believe that he deserves it, or at least that the kids should work it out for themselves. That and I wouldn't be surprised to find the teachers at that school overworked and underpaid, not wanting another problem....
It's an interesting intersection of gender, sex, and sexuality here, with the protections written for sex, being expanded by some courts to include gender expression, and now being tested in a case that will argue that stresses the gender expression component of sexuality to get a discrimination claim in.
Although it would just be nice if Title IX were amended to include LGBT people or if another similar law to protect LGBT teens were passed. Until then, we're dependent on the kindness of random judges and their willingness to accept an argument that many of them see as a stretch.