>GLSEN Public Policy Association Alison Gill takes a look at a positive development in the Department of Justice in terms of interpreting Title IX to include protections from discrimination based on sexual orientation and gender identity/expression.
After a decade of virtually no enforcement, the Department of Justice has once again taken an interest in issues of sex and gender discrimination in schools. The Department of Justice intervened in the case of Sullivan v. Mohawk Central School District et al., which was originally brought by the NY Civil Liberties Union on behalf of a 14-year-old gay boy named Jacob who attended the Mohawk Central School District in New York.
Jacob suffered a pattern of harassment and abuse by fellow students and even teachers, including verbal harassment, assault and physical harm, and destruction of his property. Although Jacob and his supportive family reported this abuse to his school principal and other school authorities promptly and regularly, no action was taken to protect Jacob. For a complete account of the harassment perpetuated on Jacob and the school administration’s refusal to act, you can read the affidavits of Jacob and his father.
The Department of Justice is pursuing this suit under Title 9 of the Civil Rights Act of 1964, which does not allow students “on the basis of sex, [to] 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.” 20 U.S.C. § 1681(a). While this law explicitly covers sex discrimination, DOJ lawyers argue that the law also covers discrimination based on gender stereotypes — that is to say, boys who are beaten up for being effeminate. While some courts have ruled that Title IX covers gender expression and sexual orientation, the law is uncertain in this area. This case may help to establish this principle more generally.
Of course all children are entitled to a safe and nurturing space in which to learn. Unfortunately, the type of bullying and harassment from which Jacob suffered is all too common for LGBT students in schools around the country. GLSEN’s research shows that 60.8% of LGBT students feel unsafe at school because of their sexual orientation, and only about a third of students who reported incidents of victimization to school staff said that the problem was addressed effectively.
While the Department of Justice intervention shows a renewed interest in protecting the rights of LGBT students, Jacob’s case again demonstrates the need for anti-bullying policies and legislation so that schools can take steps to prevent this sort of harassment in the first place.