Anti-Gay Bullying Is Not Sex Discrimination

by Roger Clegg

The Washington Post yesterday had a story headlined, “Obama administration takes on anti-gay bullying in school,” and there is likewise a story on “U.S. Hits Hard on Bullying” in Inside Higher Ed today. Bullying of any kind is bad, and sometimes it can be very bad indeed, but is the Obama administration correct in its claim that anti-gay bullying violates Title IX of the Education Amendments of 1972? No. 

Title IX bans discrimination based on sex, not sexual orientation. Accordingly, the theory that the administration uses is that anti-gay bullying will frequently involve harassment for “failing to conform to stereotypical notions of masculinity and femininity.” That is, if bunch of jocks will harass a male student, but not female students, for wearing lipstick and carrying a purse, then this is sex discrimination rather than sexual-orientation discrimination, and schools have to step in to stop it. That’s just not a persuasive argument.

The administration has cited cases in which female executives are penalized for being aggressive and male executives are not, and one can certainly see how in such instances a woman can be caught in a double bind because of her sex: If she is not aggressive, then she doesn’t get promoted because executives need to be aggressive; but if she is aggressive, then she isn’t promoted because such behavior isn’t ladylike. In those circumstances, it is plausible to say that sex stereotyping is a form of sex discrimination. But, in its school-bullying policy, the administration is using the sex-stereotyping claim in a completely different context to define what is clearly no less, but also no more, than anti-gay harassment as sex discrimination.

Again, none of this is to say that such harassment should be ignored by schools — although a zero-tolerance policy for high-school boys challenging the manhood of other high-school boys is unrealistic, to put it mildly — but that doesn’t mean the Obama administration is justified in making a federal case out of it.