The current cases involve two schools in upstate New York that supposedly discriminated against one male student who wore a pink wig and makeup and another male student who wore a wig and stiletto heels and wanted to be able to “dress like a woman.” These students had violated the schools’ common-sense dress codes and were told to change clothes and remove the makeup. That prompted the Civil Rights Division to come knocking. The boys were being treated “differently” from female students, and such differential treatment, the division asserted, “implicate[s] the civil rights laws that we enforce.”
The civil-rights statutes prohibit sex discrimination. Today’s division wants to equate sex with sexual orientation or, as it said in one letter, “perceived sexual identity.” Yet the division cannot make even a weak showing that such issues fit within the definition of discrimination prohibited by the relevant statutes, which were passed long before the gay-rights movement had even begun.
As Roger Clegg of the Center for Equal Opportunity observes: “The Obama administration apparently believes that it is unconstitutional for high schools to have a dress code that makes distinctions between what is appropriate dress for males and what is appropriate dress for females.” Clegg also points out that the division’s attempt to equate “sexual-orientation discrimination” with sex discrimination, by asserting that the use of sexual “stereotypes” is an instance of the latter, is nothing but naked bootstrapping (if you will pardon the expression). But legal justification or not, in the eyes of the warped and silly (but dangerous) lawyers inhabiting the division, barring boys from wearing stiletto heels is a serious civil-rights violation.
There is no question that schools should not allow bullying or violence of any kind. But it’s ludicrous to launch federal investigations of schools for having dress codes that differentiate between males and females, or to equate such dress codes with “sex discrimination.”
The division also wants to literally make a federal case out of derogatory name calling — something that can (and should) be handled at the local level. If you, as an immature teenager, make fun of another boy because he “dyed his hair [and] wore makeup and nail polish,” or you otherwise engage in what the division terms “teasing,” look out. The division may force your school to put you in a “training” class to educate you as to how you are discriminating on the basis of “gender identity, gender expression, and sexual orientation.” That’s what the division did in its settlement agreement with New York’s Mohawk Central School District.
The bizarre enforcement policies of today’s Civil Rights Division have nothing to do with ensuring real civil-rights protections. Instead, the division’s radical lawyers seem determined to use the agency’s power to impose their peculiar cultural and social views on the rest of us.
Oddly, one of those views is that discrimination by some racial groups is perfectly acceptable. This explains why the Justice Department dismissed the New Black Panther Party voter-intimidation case it had already won. It is why this administration is studiously not pursuing cases like the one filed against Southern Illinois University in 2006 for maintaining a paid fellowship program that categorically excluded white males from applying. It was the Bush administration’s race-neutral enforcement policy in such cases that enraged the radical civil-rights organizations that dominate Washington and formed the basis for much of the unfair and misleading criticism of that administration’s enforcement of civil-rights laws.
One can only hope that the public will soon take notice of the Obama administration’s abuse of its civil-rights enforcement function. Otherwise, the division’s “enlightened” erosion of our culture and our real civil rights will proceed apace.
— Hans A. von Spakovsky is a senior legal fellow at the Heritage Foundation and a former counsel to the assistant attorney general for civil rights at the Justice Department.