(NAME-MCE) Justice Department Cites Title IX on Behalf of Gay Teen

Sat Jan 16 08:30:27 CST 2010

Justice Department Cites Title IX on Behalf of Gay Teen

Posted By *Ryan J. Reilly* On January 15, 2010 @ 5:12 pm In *News* | *No
Comments<http://www.mainjustice.com/2010/01/15/justice-department-cites-title-ix-on-behalf-of-gay-teen/print/#comments_controls>
*
[image: The Civil Rights Division has intervened in a case of a gay teen
being harassed by classmates (file photo by Ryan J. Reilly / Main Justice).]

The Civil Rights Division has intervened in the case of a gay teen being
harassed by his classmates (file photo by Ryan J. Reilly / Main Justice).

The Obama administration has intervened in a court case on behalf of a gay
teenager by using a novel but not unprecedented interpretation of a law
intended to ban gender discrimination.

For the first time since President *Bill Clinton* was in office, the Justice
Department is arguing that the protections against sex discrimination laid
out in the Title IX <http://www.justice.gov/crt/cor/coord/ixlegal.php>
[1]amendment to the Civil Rights Act of 1964 apply to gender identity
as well.

The documents were filed in the Northern District of New York in connection
with a private lawsuit against a school district where a student was
allegedly harassed because he is effeminate. The government said it had
“authority to intervene to seek relief from denials of equal protection if
the matter is certified as a matter of general public importance,” as
certified by Assistant Attorney General *Thomas Perez*.

The student was teased and harassed by his classmates because he was had
feminine characteristics, according to the lawsuit. The lawsuit alleges that
school authorities did not do enough to intervene.

Title IX declares that “no person in the United States shall, on the basis
of sex, be excluded from participation in, be denied the benefits of, or be
subjected to discrimination under any education program or activity
receiving Federal financial assistance.”

Critics said the Civil Rights Division’s interpretation in this case goes
beyond the gender discrimination language of Title IX.

“The school has a duty to keep students safe when they’re at school,”
said Roger
Clegg <http://www.ceousa.org/content/view/507/123/> [2] of the Center for
Equal Opportunity, calling the allegations of assaults troubling although he
was not aware of the particular facts of the case. “That said, there’s a
problem with DOJ’s interpretation of Title IX. I’m very skeptical about the
argument,” Clegg told Main Justice.

Clegg said courts have rejected the argument that laws banning
discrimination based on gender also ban discrimination based on sexual
orientation.

Gay rights leaders, however, welcomed the government’s intervention.

“It’s a significant and welcomed returned presence by the Department of
Justice to these issues,” *Hayley Gorenberg* of Lambda
Legal<http://www.lambdalegal.org/>
[3] told Main Justice. “There were before the Bush administration committees
as well as individuals who had done significant work aimed towards the
protection of LGBT people and their civil rights, and for years that has
just laid fallow, and those efforts have been dormant. It is really exciting
to see them come back to life, and this is an example.”

Gorenberg disagreed withe Clegg, saying that “there are strong
interpretations of Title IX and other laws that prohibit sex discrimination
that can be used to protect gay students.”

Such laws are “validly and powerfully read when there is evidence that
discrimination against LGBT people is based on sex stereotyping and gender
roles. We lack federal law specifically defending civil rights, so the
protections need to be strong need to be put into place.”

Perez has testified<http://www.mainjustice.com/2009/11/06/perez-says-bill-would-level-playing-field-for-gay-workers/>
[4] in favor of the Employment Non Discrimination Act, which would outlaw
employers from firing based on their employees sexual identity. He has also
promised to fully enforce the recently passed hate crimes law which protects
gay, lesbian, bisexual and transgendered people from bias motivated crimes.
Gay Justice Department employees say they have seen
progress<http://www.mainjustice.com/2009/10/13/gay-doj-employees-see-halting-progress-on-rights/>
[5] and an “improved working relationship with this administration.”

The first time Title IX was used on behalf of a harassed gay individual came
in 1998, when the Civil Rights Division reached a settlement with
Fayetteville Public Schools in Arkansas. In 2007, a federal district court
in Indiana ruled that a school can be liable under Title IX for its
indifference to bullying of gay students. The court interpreted Title IX’s
prohibition on sex discrimination to include discrimination against
individuals because of their failure to conform to sex stereotypes.

Court documents filed this week say the Justice Department is intervening in
the case because of violations of Title IX as well as the Equal Protection
Clause of the Fourteenth Amendment, one count of negligent supervision,
and violations of several provisions of New York human rights laws.

The teen, identified as “J.L.” in court documents filed by his father, *Robert
Sullivan*, allege that the principal of Gregory B. Jarvis Jr./Sr. High
School and the official charged with enforcing Title IX in the Mohawk
Central School District in New York were indifferent to his harassment.

“J.L. is a fourteen year old male whose gender expression does not conform
to male stereotypes. J.L. dyes his hair, wears make-up and nail polish, and
engages in physical expressions that are stereotypically female, e.g.,
swinging his hips and singing in a high pitched voice,” according to court
documents.

The complaint alleges that when J.L. was in seventh grade, students at the
school subjected him to verbal sex-based harassment on a regular basis. His
father complained multiple times to the school, but “the district failed to
investigate, or conducted incomplete investigations of the allegations,”
according to court documents.

Gorenberg said her group had been in serious, detailed discussions with the
Civil Rights Division, and they are hopeful there will be action taken to
support LGBT (lesbian, gay, bisexual and transgender) rights.

Civil Rights Division spokesperson *Alejandro Miyar* declined to comment.

Assistant U.S. Attorney* William F. Larkin *in New York worked on the case,
as did lawyers *Amy I. Berman*, *Whitney M. Pellegrino* and *Amanda M. Downs
* of the Educational Opportunities Section in the Civil Rights Division.

The government’s intervention in this case was first reported by *Ari
Shapiro*, whose NPR story will be available
online<http://www.npr.org/templates/story/story.php?storyId=122620723>
[6] Friday evening.

Court documents from the case are embedded below.

Mohawk Memoradum of
Law<http://www.scribd.com/doc/25276282/Mohawk-Memoradum-of-Law>
[7]

Mohawk Complaint <http://www.scribd.com/doc/25281326/Mohawk-Complaint> [8]

Related stories:

   1. Justice Department Tip-Line Targets Arizona’s ‘Sheriff
Joe’<http://www.mainjustice.com/2009/12/09/civil-rights-division-sets-up-tip-line-targeting-arizonas-sheriff-joe/>
   [9]
   2. Laurie Robinson on Justice
Grants<http://www.mainjustice.com/2010/01/04/laurie-robinson-on-justice-grants/>
   [10]

------------------------------

Article printed from Main Justice: *http://www.mainjustice.com*

URL to article: *
http://www.mainjustice.com/2010/01/15/justice-department-cites-title-ix-on-behalf-of-gay-teen/
*

URLs in this post:

[1] Title IX: *http://www.justice.gov/crt/cor/coord/ixlegal.php*

[2] Roger Clegg: *http://www.ceousa.org/content/view/507/123/*

[3] Lambda Legal: *http://www.lambdalegal.org/*

[4] testified: *
http://www.mainjustice.com/2009/11/06/perez-says-bill-would-level-playing-field-for-gay-workers/
*

[5] say they have seen progress: *
http://www.mainjustice.com/2009/10/13/gay-doj-employees-see-halting-progress-on-rights/
*

[6] online: *http://www.npr.org/templates/story/story.php?storyId=122620723*

[7] Mohawk Memoradum of Law: *
http://www.scribd.com/doc/25276282/Mohawk-Memoradum-of-Law*

[8] Mohawk Complaint: *http://www.scribd.com/doc/25281326/Mohawk-Complaint*

[9] Justice Department Tip-Line Targets Arizona’s ‘Sheriff Joe’: *
http://www.mainjustice.com/2009/12/09/civil-rights-division-sets-up-tip-line-targeting-arizonas-sheriff-joe/
*

[10] Laurie Robinson on Justice Grants: *
http://www.mainjustice.com/2010/01/04/laurie-robinson-on-justice-grants/*

Bill Howe
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