The Civil Rights Division has intervened in the case of a gay teen being harassed by his classmates (file photo by Ryan J. Reilly / Main Justice).

The Obama administration has intervened in a court case on behalf of a gay teenager by using a novel but not unprecedented interpretation of a law intended to ban gender discrimination.

For the first time since President Bill Clinton was in office, the Justice Department is arguing that the protections against sex discrimination laid out in the Title IX, a 1972 education law, apply to gender identity as well.

The documents were filed in the Northern District of New York in connection with a private lawsuit against a school district where a student was allegedly harassed because he is effeminate. The government said it had “authority to intervene to seek relief from denials of equal protection if the matter is certified as a matter of general public importance,” as certified by Assistant Attorney General Thomas Perez.

The student was teased and harassed by his classmates because he was had feminine characteristics, according to the lawsuit. The lawsuit alleges that school authorities did not do enough to intervene.

Title IX declares that “no person in the United States shall, on the basis of sex, 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.”

Critics said the Civil Rights Division’s interpretation in this case goes beyond the gender discrimination language of Title IX.

“The school has a duty to keep students safe when they’re at school,” said Roger Clegg of the Center for Equal Opportunity, calling the allegations of assaults troubling although he was not aware of the particular facts of the case. “That said, there’s a problem with DOJ’s interpretation of Title IX. I’m very skeptical about the argument,” Clegg told Main Justice.

Clegg said courts have rejected the argument that laws banning discrimination based on gender also ban discrimination based on sexual orientation.

Gay rights leaders, however, welcomed the government’s intervention.

“It’s a significant and welcomed returned presence by the Department of Justice to these issues,” Hayley Gorenberg of Lambda Legal told Main Justice. “There were before the Bush administration committees as well as individuals who had done significant work aimed towards the protection of LGBT people and their civil rights, and for years that has just laid fallow, and those efforts have been dormant. It is really exciting to see them come back to life, and this is an example.”

Gorenberg disagreed withe Clegg, saying that “there are strong interpretations of Title IX and other laws that prohibit sex discrimination that can be used to protect gay students.”

Such laws are “validly and powerfully read when there is evidence that discrimination against LGBT people is based on sex stereotyping and gender roles. We lack federal law specifically defending civil rights, so the protections need to be strong need to be put into place.”

Perez has testified in favor of the Employment Non Discrimination Act, which would outlaw employers from firing based on their employees sexual identity. He has also promised to fully enforce the recently passed hate crimes law which protects gay, lesbian, bisexual and transgendered people from bias motivated crimes. Gay Justice Department employees say they have seen progress and an “improved working relationship with this administration.”

The first time Title IX was used on behalf of a harassed gay individual came in 1998, when the Civil Rights Division reached a settlement with Fayetteville Public Schools in Arkansas. In 2007, a federal district court in Indiana ruled that a school can be liable under Title IX for its indifference to bullying of gay students. The court interpreted Title IX’s prohibition on sex discrimination to include discrimination against individuals because of their failure to conform to sex stereotypes.

Court documents filed this week say the Justice Department is intervening in the case because of violations of Title IX as well as the Equal Protection Clause of the Fourteenth Amendment, one count of negligent supervision, and violations of several provisions of New York human rights laws.

The teen, identified as “J.L.” in court documents filed by his father, Robert Sullivan, allege that the principal of Gregory B. Jarvis Jr./Sr. High School and the official charged with enforcing Title IX in the Mohawk Central School District in New York were indifferent to his harassment.

“J.L. is a fourteen year old male whose gender expression does not conform to male stereotypes. J.L. dyes his hair, wears make-up and nail polish, and engages in physical expressions that are stereotypically female, e.g., swinging his hips and singing in a high pitched voice,” according to court documents.

The complaint alleges that when J.L. was in seventh grade, students at the school subjected him to verbal sex-based harassment on a regular basis. His father complained multiple times to the school, but “the district failed to investigate, or conducted incomplete investigations of the allegations,” according to court documents.

Gorenberg said her group had been in serious, detailed discussions with the Civil Rights Division, and they are hopeful there will be action taken to support LGBT (lesbian, gay, bisexual and transgender) rights.

Civil Rights Division spokesperson Alejandro Miyar declined to comment.

Assistant U.S. Attorney William F. Larkin in New York worked on the case, as did lawyers Amy I. Berman, Whitney M. Pellegrino and Amanda M. Downs of the Educational Opportunities Section in the Civil Rights Division.

The government’s intervention in this case was first reported by Ari Shapiro, whose NPR story will be available online Friday evening.

Court documents from the case are embedded below.

Mohawk Memoradum of Law

Mohawk Complaint

The Justice Department said in a court filing submitted today that the 1996 Defense of Marriage Act discriminates against gays but DOJ will continue to uphold the federal law that does not recognize gay marriage as long as it is on the books. Read the filing obtained by Politico here.

DOJ is seeking to have an anti-DOMA suit filed by a gay California couple thrown out. President Obama has been under attack by gay rights groups for DOJ’s defense of the federal law that does not recognize gay marriage.

Justice Department officials and Obama met in June with organizations that were angry about DOJ’s efforts to uphold DOMA, which leaves the decision to recognize gay marriage up to the states. He told gay rights advocates that he is committed to gay rights and supported repealing DOMA.

“This administration does not support DOMA as a matter of policy, believes that it is discriminatory, and supports its repeal,” DOJ Senior Trial Counsel Scott Simpson wrote in the filing today. ”Consistent with the rule of law, however, the Department of Justice has long followed the practice of defending federal statutes as long as reasonable arguments can be made in support of their constitutionality, even if the department disagrees with a particular statute as a policy matter, as it does here.”

He added in a footnote: “This longstanding and bipartisan tradition accords the respect appropriately due to a coequal branch of government and ensures that subsequent administrations will faithfully defend laws with which they may disagree on policy grounds.”

Massachusetts placed the Justice Department between a rock and a hard place yesterday by suing the U.S. government over the Defense of Marriage Act. Read The Associated Press report here.

Massachusetts Attorney General Martha Coakley filed the lawsuit in Boston contesting the federal law that does not recognize gay marriage. The suit argues that the act “constitutes an overreaching and discriminatory federal law,” according to The AP. Massachusetts, Connecticut, Vermont, New Hampshire, Maine and Iowa have legalized gay marriage in their states.

The Justice Department defended the act last month, which infuriated gay rights groups. President Obama has tried to mend bridges with the gay community since then. He told gay rights advocates two weeks ago that he is committed to gay rights and supported repealing DOMA.

Fort Worth Mayor Mike Moncrief called upon federal prosecutors this past Friday to conduct a thorough review of last week’s raid at at The Rainbow Lounge resulting in a serious head injury to one individual, reports The Dallas Morning News.  The gay bar was raided by Texas police on the 40th anniversery of the Stonewall Riots in New York.

Currently, two parallel investigations are under way by the Fort Worth police and the Texas Alcoholic Beverage Commission.  Police Chief Jeff Halstead announced that joint bar checks by local police and the TABC would be suspended indefinitely.

The Justice Department will not contest a $500,000 ruling for a Library of Congress applicant who had a job offer rescinded while undergoing a sex change operation to become a woman, The Associated Press reported this morning.

The decision to let Tuesday’s appeal deadline pass comes a day after President Obama hosted gay rights advocates at the White House to assuage their anger over his administration’s recent actions on lesbian, gay, bisexual and transgender issues. The Justice Department infuriated the gay community by submitting a filing last month that defended the Defense of Marriage Act, which leaves the decision of recognizing gay marriage up to the states.

Obama told gay rights supporters at the White House Monday that he was committed to gay rights and supported repealing DOMA. But the president said it will take some time to adequately address the concerns of the LGBT community.

“We’ve been in office six months now,” Obama said. “I suspect that by the time this administration is over, I think you guys will have pretty good feelings about the Obama administration.”

Read our report on the meeting here.

An attorney for a homosexual couple now plans to use comments made by President Obama on the Defense of Marriage Act last week in federal court this August to argue for the federal government’s recognition of gay marriage, The San Francisco Chronicle reported yesterday.

The Justice Department invoked DOMA earlier this month in a motion to dismiss the marriage case filed in federal court. The DOJ said the case should be handled by a state court because it involves a gay couple married in California. The federal 1996 Defense of Marriage Act leaves the decision of recognizing gay marriage up to the states.

The DOJ’s motion made many gay rights groups livid. The DOJ Civil Division will meet with some of these organizations today, Politico reported yesterday.

But now The Chronicle said attorney Richard Gilbert plans to argue that gay marriage is a federal issue because of comments President Obama made on DOMA last Wednesday when he announced that homosexual partners of federal employees would receive some government benefits. “It’s discriminatory, it interferes with states’ rights, and it’s time we overturned it,” Obama said.

“It appears to me that the president of the United States is making it clear that the attorneys for the United States do not represent the views of the administration,” Gilbert told the Chronicle. “I think they have a duty to withdraw their motion. I think they have a duty to join my side of the case.”

The Justice Department will meet next week with gay rights groups who are angry about the DOJ’s decision to uphold the federal Defense of Marriage Act which leaves the decision to recognize gay marriage up to the states, The Plum Line reported this afternoon.

We previously reported that the DOJ invoked DOMA in a motion filed last week in California to dismiss the first gay marriage case filed in federal court.  The DOJ said the case should be handled by a state court because it involves a gay couple married in California.

The Plume Line’s Greg Sargent said the meeting to discuss DOMA concerns will likely include major gay rights organizations GLAD and Lambda Legal. But the meeting might not do too much for the groups, he said.

“It remains to be seen, however, whether the meeting will achieve in a long term sense what gay rights lawyers told me they were and are looking for — an ongoing, less-confrontational interaction with the administration in the context of specific cases,” Sargent wrote. “It’s also an open question whether the meeting will resolve broader tensions in what has been an unexpectedly rocky relationship.”

The meeting is the latest effort by the Obama administration to mend bridges after infuriating the gay community last week. Earlier this week, the Justice Department told GLAD that gay couples could now use their married names in their passports, The Associated Press reported today.

The Justice Department filed a motion Thursday night in California to dismiss the first gay marriage case filed in federal court, but the move wasn’t a rallying cry for gay rights, the Associated Press reported today. To the contrary, gay rights activists are livid.

Although President Obama campaigned for gay rights while running for president, the Obama DOJ isn’t using the case of a gay couple who married in California during a five-month window when same-sex marriage was legal as a vehicle to argue for the right to marry. Instead, the DOJ wants the case dismissed because federal court is not the correct venue for a case involving a gay couple married in California, according to The AP. Prosecutors said the case isn’t about allowing gay couples to marry. Rather, the DOJ said it is about whether individual states should give equal rights to gay couples as they do same-sex couples, the AP reported.

“This case does not call upon the Court to pass judgment … on the legal or moral right of same-sex couples, such as plaintiffs here, to be married,” the motion states. “Plaintiffs are married, and their challenge to the federal Defense of Marriage Act poses a different set of questions.”

The federal 1996 Defense of Marriage Act leaves the decision of recognizing gay marriage up to the states.

Sen. Jeff Sessions (R-Ala.), the staunch conservative who is the new ranking member on the Senate Judiciary Committee, said he a Supreme Court nominee’s sexual orientation shouldn’t matter. ”I don’t think a person who acknolwedges that they have gay tendenceis is disqualified per se for the job,” Sessions said in an interview on MSNBC. He also said he was not inclined to filibuster President Obama’s nominee.