If you’d argue the Bush administration’s Justice Department would’ve taken this case, we gladly would’ve taken your bet. But Obama’s DoJ — the same one that’s defending the Defense of Marriage Act — is now joining a battle to protect a now-15-year-old upstate New York boy who faced daily torment by classmates for acting effeminate, while school administrators, fully aware of the harassment, allegedly stood by doing nothing. And DoJ’s case hinges on a little thing called Title IX.
Generally reserved for blocking discrimination based on gender, Title IX will be used by DoJ to argue that gender stereotyping — rather than gender alone — is covered by the law.
The case centers around Jacob, who came out at 14, but even before then faced a lunchroom where students threw food at him. “Over two years, Sullivan went to his son’s school three or four times a week to talk with the principal,” relays NPR. “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 move by DoJ is perhaps the boldest yet under Tom Perez (pictured), Obama’s so-called civil rights czar, who’s heading up Justice’s Civil Rights Division. You’ll remember him as the guy who, on a mission to “recharge” the division after Bush’s lax regime, said he’d use his post to protect LGBTs. (Perez is also the guy who, under Attorney General Eric Holder, is letting one-half of a gay couple be deported, because the United States doesn’t recognize their marriage.)
And while few will debate whether any kid, LGBT or otherwise, should be subject to harassment at school, there is an argument over whether Title IX can be used so broadly.
“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.
“If the Civil Rights Division and the Obama administration want to propose that Title IX be amended to include sexual orientation, that’s something they can do and that can be debated in Congress,” Clegg says. “But Congress has not passed a law that deals with discrimination on the basis of sexual orientation.”
Not so, says Gorenberg of Lambda Legal.
“We have clear interpretations out of many federal courts that clearly set forth that Title IX protects against sex stereotyping,” she says.
While some courts have ruled that Title IX covers gender expression and sexual orientation, the law remains murky in this area. Gay and lesbian advocates hope this will be the case that establishes the principle more firmly.
Well, that will be decided in the courts. In the meantime, let’s appreciate this for what it is: The Obama administration making a (much needed!) public step into the fray of school bullying, and selecting a case straight out of the horrors of Jaheem Herreras. Whether the Title IX argument works in front of a judge is one thing; whether it’s a signal of DoJ’s commitment to protecting LBGT youth is another.