Title IX was passed in 1972 to open the door of opportunity to women seeking to learn traditionally male things (such as by opening up vocational education to women). Later, it was used by the Education Department to require colleges to give women a proportionate share of athletic budgets and slots (even though requiring such proportionality is expressly at odds with the provision of Title IX saying schools don’t have any duty to prevent any gender “imbalance,” as opposed to outright discrimination, see 20 U.S.C. 1681(b)).
Now, a federal appeals court has ruled that Title IX protections protect students — even men — against discrimination based on “perceived sexual orientation.” It was a logical application of the Supreme Court’s Bostock decision saying that another sex discrimination law covers sexual orientation discrimination. But that Supreme Court decision was rather dubiously reasoned, as Justice Samuel Alito noted in that earlier case. The Congresses that passed federal laws against sex discrimination didn’t intend to ban sexual orientation discrimination, however cruel such discrimination can be.
The federal appeals court ruling was in favor of Michael Grabowski, a student at the University of Arizona. As a freshman in 2017, he enrolled in Cross Country and Track and Field, and during that year’s pre-season training in August, his teammates mistook him for a homosexual and allegedly called him antigay slurs.
After a trial judge dismissed his lawsuit, saying harassment based on perceived sexual orientation wasn’t a violation of Title IX, it was revived by the regional federal appeals court, the U.S. Ninth Circuit Court of Appeals.
As it noted in its ruling reviving his lawsuit, Grabowski described harassment that allegedly continued for a year until Grabowski notified school authorities in August 2018. However, his report drew from the school “a concerted effort … to demoralize him,” including forcing him to run at a track meet while he was sick with a viral infection.
Allegedly, in September 2018, Director Fred Harvey “leapt out of his chair, ran up to within a few inches of Plaintiff’s [Grabowski’s] face, slammed his hands down hard on Plaintiff’s arms … and called Plaintiff a … ‘white racist.’” Afterward, in 2019, Grabowski filed suit against the University of Arizona. After his lawsuit was dismissed by the trial court, the Ninth Circuit Court ruled in favor of his appeal.
As it noted, Title IX protections could apply to his circumstances if the alleged harassment and retaliation were conducted “on the basis of sex,” to quote the text of the Title IX statute. You might not think of harassment based on perceived sexual orientation as being based on sex — the drafters of Title IX back in 1972 sure wouldn’t have — but the Supreme Court ruled that harassment based on sexual orientation qualified as harassment “because of…sex” in its decision in Bostock v. Clayton County (2020). And the same reasoning logically applies to Title IX, which bans discrimination “on the basis of sex.”
One obstacle to Grabowski’s claim is that by his own admission, Grabowski is not gay. Rather, Grabowski argued, his teammates believed him to be gay.
But another Supreme Court decision also expanded the definition of sex, in a way relevant here. In Price Waterhouse v. Hopkins (1989), the Supreme Court ruled that an employer’s perception of of accountant Ann Hopkins’ as too “macho” for a woman was not a non-discriminatory reason to deny her a promotion, and that treating abrasive women worse than abrasive men was illegal sex discrimination in violation of the federal law against workplace sex discrimination, Title VII. Using the Price Waterhouse decision as its touchstone, the Ninth Circuit Court of Appeals concluded, “That reasoning applies ‘with equal force to a man who is discriminated against for acting too feminine.’”
The Ninth Circuit’s decision is in tension with the Eighth Circuit’s decision in Wolfe v. Fayetteville, Arkansas School District (2011), which rejected a lawsuit by a heterosexual boy taunted with antigay slurs. That disagreement among courts — a so-called “circuit split” — is a potential ground for the Supreme Court granting review of the Ninth Circuit’s decision, to ensure uniformity in the law.
