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Justice Department Intervenes In Gay Rights Suit

by Ari Shapiro

January 15, 2010

For the first time in a decade, Justice Department lawyers have moved to intervene in a lawsuit on behalf of a gay high school student who was beaten up for being effeminate.

The case marks a novel interpretation of the Title IX statute, which prohibits discrimination against students on the basis of gender.

Gay and lesbian groups see it as a bold statement about the Obama administration's priorities.

Brutal Harassment

The case centers around a 15-year-old named Jacob who lives in the town of Mohawk in upstate New York. His family requested that Jacob be identified only by his first name.

"He is one of the greatest, loving, timid kids you could meet," says Jacob's father, Robbie Sullivan, who does not share his son's last name. "I love him to death, and he doesn't give me a bit of problem at all."

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.

"A parent can only do so much against an entire school," he said. "I can't go to the school and grab the students and investigate it myself. I have to rely on the school to hopefully do what they're supposed to do."

School superintendent Joyce Caputo was at a conference Friday and was unavailable for comment. In August, she told the local newspaper, "Our district has not and will not knowingly tolerate discrimination or harassment of its students by anybody."

Is He Protected Under Title IX?

Now the Justice Department's Civil Rights Division has asked a judge for permission to intervene on Jacob's behalf.

"We haven't seen this kind of involvement in quite some time," says Hayley Gorenberg of Lambda Legal, a national gay rights legal organization. "It's a long time coming, and we really need it."

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.

"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.