The purpose of Title IX is to address sex discrimination in schools. However, this federal law has also been an effective tool in addressing discrimination or harassment in schools based on gender stereotypes associated with sexual orientation. Though Title IX does not directly address discrimination based on sexual orientation, gender expectations linked with stereotypes of lesbians and gay men often are related. When gender stereotyping occurs in incidents of discrimination and harassment of lesbian, gay, bisexual students or students who are perceived to be lesbian, gay or bisexual, Title IX may provide legal grounds for challenging this discrimination.
In several recent court cases, Title IX has been successfully used in this way. In
Theno v. Tonganoxie Unified School District, 377 F. Supp.3d 952 (D. Kansas 2005), Title IX formed the basis for a ruling supporting a male student's claim that the school district was deliberately indifferent to harassment to which he was subjected by other students on the basis of his perceived gender and sexual orientation. He was teased, called names and subjected to crude sexual gestures over a four year period. The court ruling that he had been subjected to sex discrimination was based on the assertion that gender stereotyping is another “method of proving actionable harassment under Title IX.” The court ruled that “the plaintiff was harassed because he failed to satisfy his peers' stereotyped expectations for his gender because the primary objective of plaintiff's harassers appears to have been to disparage his perceived lack of masculinity.” Similarly, in
Montgomery v. Independent School District No. 709, 109 F. Supp. 2d 1081 (D. Minn. 2000) the court ruled that the school district failed to protect a male student from harassment on the basis of his gender and perceived sexual orientation. The court ruled that, although Title IX does not prohibit harassment or discrimination based on sexual orientation, it does prohibit harassment based on gender nonconformity. The court held that the facts supported the contention that the plaintiff was harassed “because he did not meet [the harassers'] stereotyped expectations of masculinity.”
In another case,
Schroeder v. Maumee Bd of Educ., 296 F. Supp.2d 869 (N.D. Ohio 2003), the court ruled in favor of a student who used Title IX to claim that his school showed deliberate indifference to verbal and physical harassment he endured because of his advocacy of tolerance for lesbian and gay people in school. In its ruling, the court cited a series of cases holding that targeting someone because of their perceived sexual orientation was based on gender stereotypes and therefore a form of sex discrimination.
In
Ray v. Antioch Unified School District, 107 F. Supp. 2d 1165 (N.D. Cal. 2000), a male student claimed that he was harassed and assaulted because of his perceived sexual orientation. The school district petitioned to have the Title IX claim dismissed. The court held that harassment due to the student's perceived sexual orientation can constitute “sexual harassment” under Title IX. The court said, “Plaintiff was targeted by his classmates due to his perceived sexual status as a homosexual, and was harassed based on those perceptions. Thus, although Plaintiff's complaint makes no specific characterization of the harassing conduct as ‘sexual' in nature, it is reasonable to infer that the basis of the attacks was a perceived belief about Plaintiff's sexuality, i.e. that Plaintiff was harassed
on the basis of sex.” (Emphasis in original).
In these cases Title IX was successfully used to address harassment, assault or discrimination targeting students whom their harassers perceived to be gay based on gender stereotyping. Most of the verbal harassment in these cases was focused on the harassers' belief that the targeted students did not exhibit the masculine behavior expected of them. The courts ruled that discrimination or harassment based on gender non-conformity is a form of sex discrimination and, therefore, Title IX applies. In
Ray v. Antioch Unified School District, 107 F. Supp. 2d 1165 (N.D. Cal. 2000) the ruling was based on a slightly different rationale: that it is reasonable to infer that harassment based on perceived beliefs about sexuality constitutes harassment based on sex.
These cases demonstrate the potential usefulness of Title IX in addressing incidents of peer harassment in schools based on perceived sexual orientation where school officials are “deliberately indifferent” to student and parental complaints of harassment. The link between gender stereotyping and assumptions about gender and sexual orientation form the basis for the use of Title IX to address harassment and discrimination directed at students perceived to be lesbian, bisexual or gay. Title IX is typically used to address sex discrimination that disadvantages female students since they are more likely to have inferior athletic opportunities in schools. However, Title IX provides protection to both females and males who are subjected to sex discrimination in schools. In the cases cited here, for example, male students and their families successfully used Title IX to challenge discrimination and harassment based on gender stereotyping associated with sexual orientation. Title IX can also provide protection to female students harassed or discriminated against in similar ways.
Implications of Title IX for Addressing Sexual Orientation Discrimination in AthleticsStudents often perceive male physical education teachers and coaches to be intolerant of gender non-conformity among boys in their classes and on their teams. Male athletes often reflect the intolerance they learn from their coaches and teachers. Male students often claim that locker rooms and other unsupervised athletic areas in schools are particularly threatening environments in the school for boys who are perceived to be gay based on their gender non-conformity. Moreover, anti-gay and anti-female slurs are used by some coaches and athletes to disparage poor athletic performance or to taunt opponents.
Gender non-conforming females are also subjected to harassment in schools. For female athletes (and coaches) gender stereotyping has a different effect. Because athleticism is still more associated with males, females who are athletic may be subjected to harassment and teasing based on gender non-conformity because of their athleticism. Because of assumptions about the relationship between gender non-conformity and sexuality, athletic females are often assumed to be lesbians or are taunted with anti-lesbian slurs as a form of intimidation or harassment.
All members of school communities should be aware of Title IX. School administrators and athletic directors need to be aware of the requirements of Title IX and their responsibilities to respond to individual incidents or patterns of discrimination or harassment in athletics prohibited by Title IX. Coaches and teachers should be aware of their legal and ethical responsibilities to prohibit discrimination and harassment on their teams and in their classes as well. Parents and students should be aware of Title IX's requirements and the procedures for using Title IX when discrimination or harassment based on sex or gender stereotyping occurs.
The intentions of all civil rights legislation, of which Title IX is one example, is to eliminate inequality and to provide a “level playing field” where all people, regardless of individual or group differences, have access to the resources and opportunities they need to achieve personal goals in a climate that is equitable, safe and respectful. A student's sex, gender expression or sexual orientation should not be grounds for harassment or discrimination in any school programming. Title IX is an effective legal tool for helping schools assure that all students are treated fairly and respectfully. School athletics should provide equitable and safe competition for all participants, male and female, gay and straight. Title IX can be an effective legal resource for challenging discrimination that threatens this ideal.
Special thanks to Kate Kendall at The National Center for Lesbian Rights for the case information included in this article