Alex Blaze

Justice Department takes on gay student's case

Filed By Alex Blaze | January 18, 2010 12:30 PM | comments

Filed in: Living
Tags: Barack Obama, bullying, DOJ, gender, New York, new york civil liberties union, schools, title ix

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.


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As a teacher and active GSA supporter/sponsor, stories of bullies and heartless educators breaks my heart. It only takes one hurtful comment from a teacher to undo a day's worth of love and support from those of us who believe that our LGBTQ youth are suffering in the public school system. My students often complain of teacher discrimination.

It's the worst, because it comes with a punch of authority and official-ness.

Margaretpoa Margaretpoa | January 18, 2010 1:14 PM

Meanwhile, Obama is having breakfast with David Bahati. Hope he enjoys his eggs with a huge helping of hate.

Interesting argument ... because if it works for gender expression, then it ought to work for sexual orientation issues as well:

Gender expression:
Did you beat up Jacob because he "walks like a girl"? Would you beat up a girl for walking like a girl? Then you are guilty of sex discrimination against Jacob.

Sexual orientation:
Did you beat up Jacob because he took a boy to the prom? Would you beat up a girl for taking a boy to the prom? Then you are guilty of sex discrimination against Jacob.

Same argument in both instances.

Of course, conservatives will argue that the intent of Title IX was not to erase all societal differences between males and females --- and no, that possibly wasn't its intent.

I doubt it's what they intended, at least in terms of reaching LGBT people (perhaps I'm wrong). But it's also hard to imagine those protections not including gender stereotypes.

"No, we're not discriminating against girls, we just don't want them doing unfeminine things so they'll take keyboarding instead of programming. But everyone's still learning about computers."

Sarah Riggl2 | January 19, 2010 8:50 AM

I think the more important question would be: "Would you beat up a girl for being to 'manish'?
or, "Would you beat up a girl who is to butch for taking another girl to the prom?

Whether knowingly or not, your observation, "part of the issue Republicans who worked in the Civil Rights Division might be having is that they don't believe in civil rights" echoes the DOCUMENTED INTENTIONAL neglect by Repugs in government [and the pathological overriding ideology] by author Thomas Frank, interviewed on the most recent [and always briliant] PBS "Bill Moyers Journal." Some quotes below and then a link to where one may read the transcript or watch the video:

"Frank believes that many of the crises that afflicted America during the oughts should be laid at the feet of the conservative movement. Frank's list is long: the inadequate response to Katrina; the Enron, Abramoff and Madoff scandals; the mismanaged Iraqi reconstruction; two mismanaged and unpopular wars; and the 2008 financial disaster. Frank argues that it can all be traced back to an intentional dismantling of the government's oversight infrastructure, driven by a belief that government is always bad: 'This is why the wreckage that I've described can't be separated from the conservative ideology and the conservative movement, generally: Because of their hatred of big government and their disdain and contempt for the federal workforce'."

"The Department of Labor, for example, when the conservatives when are in office, they routinely stuff the Department of Labor full of ideological cranks. And people that don't believe in the mission.

And the result is that it doesn't-- they don't enforce anything. Towards the very end of the Bush-era, the Department of Labor had been whittled down. It was a shell of its former self. And at the very end of the Bush Administration, one of the government accountability programs did a study of the Department of Labor. ...

They made up these horrendous labor violations around the country and phoned them in as complaints to the Department of Labor to see what they would do, okay? They responded to one out of ten of these, you know, where they called in as like, 'Well, we got, you know, kids working in a meat packing plant during school hours. You know, can you, you going to do anything about that?' 'No.'

Or you look at something like the Securities and Exchange Commission. These guys are supposed to be regulating, you know, the investment banks, okay? Goldman Sachs, Morgan Stanley, that sort of thing. These guys were so under-funded, and not just under-funded, but you had people in charge of it who didn't believe in regulating Wall Street. ...

Once Bush was out, there was a study done of the SEC, as well. These people didn't even have like their own functioning photocopiers, okay? So, we're talking about the lawyers that are supposed to be protecting us from Wall Street. And they have to go stand in line at Kinko's to do their own photocopying. And they're going up against the best paid, you know, best educated lawyers on planet Earth, who represent the investment banks. And they're supposed to be defending us."

"...there's a whole conservative literature on why you want second-rate people in government, or third-rate. [They believe] 'The best public servant is the worst one.' Okay? You want bad people in government. You want to deliberately staff government with second-rate people. Because if you have good people in government, government will work."

"...the conservatives have for decades now made their—the whole point of their party is to attack government, attack the state, encourage cynicism about government. And then wreck it when they're in charge, right?

Democrats never defend the state. They never come out and say, 'No, no. It's important to have, you know, government. It's important to have a Department of Labor. These are, you know, having government actually-- a good government increases your freedom. It doesn't ruin it.' They never fight back consistently."

http://www.pbs.org/moyers/journal/01152010/profile.html

LGBT-specific related note:

The Legal Services Corporation [LCS} is a federal agency created to provide free legal services to the poor. Late gay activist Dan Bradley, at the time its director, helped put together a coalition of both liberal and conservatives to prevent the Reagan Administration from destroying it by zero funding [a tactic of what conservatives call "Defund the Left"]. "Of all the social programs growing out of the Great Society, there is none that Ronald Reagan dislikes more than the Legal Services Corporation." - Time magazine.

Hillary Clinton, a close friend of Bradley's, was on its board at the time, having been appointed by Pres. Carter. She actually filed a lawsuit against "recess appointments" to the board by Reagan whose clear agenda was to destroy it. Unfortunately, it wasn't successful but some of them were denied seating by Senate in any case yet Reagan continued to try to destroy it from within.

One of the specific reasons the neo-nazis hated it so much is because some of its grant recipients were defending gays in adoption and gay couple rights cases. I fear I've forgottten whether the infamous McDonald Amendment which would have barred LCS from helping gays in any way finally passed.

Bradley was one of those arrested at the White House along with Leonard Matlovich, Troy Perry, and David Mixner protesting Reagan's passive genocide by AIDS.

Tasha Elizabeth | January 18, 2010 8:53 PM

"They are making up a legal violation where there hasn't been one,"

ummm....the supreme court already decided this in the price-waterhouse line of cases....it falls under title VII, and should not be heard under title IX....this is settled law. its not a stretch, its nothing new....

i dont understand why they are arguing it this way....but then i havent read the briefs, if anyone has access to them i would like to see them.