A 13-year-old boy named Jon Carmichael killed himself during spring break in 2010.
According to a civil rights lawsuit brought by his parents, a few days before Jon killed himself, football players at his middle school in northern Texas had attacked him in the locker room, stripped him nude, tied him up, placed him in a trash can, and called him a "fag," "queer," and "homo," while the whole event was videotaped and later posted on YouTube.
A teacher stood by as the attack occurred and did nothing to stop it. In fact, several teachers at the school had, for months, witnessed Jon being attacked and bullied.
On almost a daily basis, classmates assaulted him in the locker room and forcibly removed his underwear, shoved him in the hallways, pushed him to the ground on the athletic field, flushed his head in the toilet, or stuffed him into a trash can. But no one stopped it because, in the words of one teacher, "Boys will be boys."
You would think that this kind of bullying is illegal and schools have a responsibility to stop it.
Title IX requires that schools protect their students from severe and pervasive harassment by other students. Although that statute only explicitly prohibits bullying based on the sex of the target, numerous courts, the Department of Education, and the Department of Justice have all interpreted that protection to extend to students like Jon who are bullied because they don't meet stereotypical notions of masculinity and femininity. That's why it was so surprising that when Jon's parents asked the U.S. Court of Appeals for the Fifth Circuit to decide whether Title IX covers bullying based on sex stereotypes, the court said, in effect, "Ask us again, later."
The court ruled on the narrower grounds that repeatedly removing someone's underwear without his consent "constitutes pervasive harassment of a sexual character" regardless of the attacker's motivation, but the court expressly refused to decide the broader question about whether Title IX covers bullying based on failure to conform to gender stereotypes.
That means that for LGBT kids who attend schools in Texas, Louisiana, and Mississippi (also in the Fifth Circuit) might still not be protected by Title IX if their schools stand by and watch them be bullied and assaulted, as long as the bullying falls short of grabbing their genitals or forcibly removing their underwear.
The decision is a timely reminder why Congress needs to finally pass the Student Non-Discrimination Act to formally extend explicit protections to LGBT students like those that already exist for harassment based on race, sex, disability, and other characteristics. The legislation currently has the support of more than 220 members of the Senate and House of Representatives. The Obama administration has done an admirable job in using laws currently on the books to provide as much protection to LGBT students as possible. But with courts like the Fifth Circuit still holding back, Congress must act to bring the legal certainty that only explicit protections can provide.
For all the other 13-year-olds like Jon, it's the least that Congress can do.