Experience and common sense teach that bullies and harassers of this age are not particular about what they say when bullying and harassing their victims. While their words might reveal an animus based on the victim's male gender, they may also simply represent more generally a characteristic of the perpetrator's sociopathic behavior, regardless of the victim's gender.In a way, the judge is right that what the bullies are saying as bully is not particularly meaningful or probative of motivation or intent. But the social context of male-on-male bullying makes clear that it's entirely about sex and gender. Whether its because the victim is short, not good at sports, or perceived to be gay, the point of bullying is to sustain a power imbalance between men and women by ascribing power to those who are most traditionally masculine (big, strong, straight, good at sports) and devaluing those who do not conform to that stereotype. Relatedly, many bullies bully in order to prevent themselves from being at the bottom of the pecking order within male groups and thus closer to the group (girls) constructed as inferior. While the court might rightly distinguish this motive from picking on the victim because of his perceived gender nonconformity, it is still bullying that is, at its core, about sex, because it is about the imbalance of power between (and thus, within) the sexes.
Decision is: Estate of Carmichael v. Galbraith, 2012 WL 13568 (N.D. Tex. Jan. 5, 2012).