This is a 2005 case of school bullies picking on an effeminate teenager, and the student sued the school district for deliberate indifference to the same-sex gender harassment. He claims he is not gay but basically he sued for being called gay. The student won at trial and this opinion upholds the judgment, a major win for anti-bullying and gay rights.

DYLAN J. THENO, Plaintiff,

394 F. Supp. 2d 1299

Decided, October 18, 2005, opinion by Judge John Lungstrum:

This case arises from same-sex student-on-student harassment of plaintiff Dylan J. Theno while he was a junior high and high school student in defendant Tonganoxie Unified School District No. 464. The jury returned a $ 250,000 verdict against the school district on plaintiff’s claim that the school district violated Title IX of the Education Amendments Act of 1972 (Title IX), 20 U.S.C. §§ 1681 et seq., by being deliberately indifferent to the harassment. This matter is presently before the court on the school district’s renewed Motion for Judgment as a Matter of Law (Doc. 148) pursuant to Fed. R. Civ. P. 50(b).

One of the claims of the school district’s motion is “that the evidence at trial was insufficient to prove that plaintiff was harassed based on his gender”

The Court explains:

The school district argues that there was no evidence plaintiff’s harassers were motivated by perceptions that he was effeminate or homosexual. Rather, they simply picked on him and teased him by using sexually charged words and themes as a crude topic for teenage banter. According to the school district, for example, “the masturbation jokes were motivated by the harassers’ desire to be funny, or to provoke or embarrass plaintiff using a socially awkward subject.” The school district argues that plaintiff tried to fashion a gender-based harassment claim “by showing that he was not a typical boy’ because he had an unusual hairstyle, enjoyed Tae Kwan Do, and wore an earring,”


The school district contends that, viewing the evidence in the light most favorable to plaintiff, the harassment was motivated by his failure to meet social stereotypes, not gender stereotypes, inasmuch as his individual style and interests were considered “uncool” by his peer group. Thus, the school district argues that the harassment was akin to plaintiff having been called “geek,” “weirdo,” or “spaz.”

Plaintiff testified to being called “pussy”, “flamer”, “faggot”, and “queer”. So the Court disagrees with the school:

Certainly, this [the school’s argument] is one permissible view of the evidence and if the court were to view the evidence in the light most favorable to the school district, the jury could have properly found for the school district rather than plaintiff on this element. But of course the court must view the evidence in the light most favorable to plaintiff at this procedural juncture. Viewed in such a light,the court concludes after careful consideration of this issue that the evidence was sufficient for the jury to find that plaintiff’s harassers were motivated by his failure to conform to stereotypical gender expectations.

Specifically, the Court notes that

Plaintiff testified at trial that his childhood interest in the Teenage Mutant Ninja Turtles sparked his interest in Tae Kwan Do. He began doing Tae Kwan Do when he was seven years old and continued through his high school years, and he was apparently quite good at it.

And there they are again. The Ninja Turtles brought up in a Federal Court opinion for no particularly necessary reason. Here they justify the plaintiff’s interest in Tae Kwon Do as an ordinary boyhood interest, but also they appear here again serving as a symbol of multicultural values. Recall that the Ninja Turtles were cited in connection with the Burger King Kids Club because they represented a prior multi-ethnic cartoon. Recall also the similarities between the BK Kids Club and the modern television show “Glee”. Further note that the story of this Dylan Theno case, that of (gay) bullying is a familiar plot on the show.

dylan thenoglee curt
glee slushy

Dylan Theno’s story has received substantial attention. Here are a few links for some more information:

A fellow wordpress blog called “Dylan Theno Fights the System” explains a lot.

ABC news covered the story in August 2005 when Theno first won the jury trial: “School Ordered to Pay $250,000 to Bullied Teen”

And a December 2005 article (two months after the case decision above) explains that a settlement was ultimately reached “Student reaches $440,000 settlement in sex harassment case”

A video posted in 2011 has Theno discussing the bullying.