Here is the latest in the Justice Department’s war on “gender stereotypes.” The Department’s civil-rights division announced yesterday the terms of its settlement with a New York school district that, in the division’s opinion, was insufficiently aggressive in protecting a young man from “harassment based on sex” by other students. The harassment stemmed from the student’s “fail[ure] to conform to gender stereotypes” — that is, he “exhibited feminine mannerisms, dyed his hair, wore makeup and nail polish, and maintained predominantly female friendships.” The settlement will require the school district to, among other things, “retain an expert consultant in the area of harassment and discrimination based on sex, gender identity, gender expression, and sexual orientation” and for the consultant “to conduct annual training for faculty and staff, and students as deemed appropriate by the expert” on the same topics. Oh, and the aggrieved student — who now attends school elsewhere — will get $50,000 and the New York Civil Liberties Union will get $25,000 in attorney fees.
Now, let me first say that schools should not allow students to bully and beat up other students for any reason, including being gay or perceived as being gay. But it is quite a leap from that to saying that the federal government should police local school districts in this regard, with further leaps out of the real world if illegal harassment is defined to include name-calling in a high school when a male student dyes his hair and wears makeup and nail polish (in this case, the Justice Department “alleged that the harassment … escalated from derogatory name-calling to physical threats and violence”). As for insisting that an “expert consultant” decide which students are “deemed” to be in need of “training” with regard to appropriate attitudes on “sex, gender identity, gender expression, and sexual orientation” — well, this gets pretty scary pretty fast.
Not only is this a dubious priority for the federal government — wasting the taxpayers’ money and ignoring federalism’s comity — but it is a legal overreach. Title IX — one of the two laws relied on here — prohibits discrimination on the basis of sex, not sexual orientation. The other law cited by the Justice Department is the Fourteenth Amendment, but, as I noted here last week, it too has limits, and the Obama administration’s apparent position that, for example, high-school dress codes are unconstitutional if girls are allowed to wear makeup and boys aren’t is, well, silly.