Title IX Protects Student Against Anti-Gay Bullying

A federal district court in Indiana recently held that a school can be liable under Title IX for its indifference to anti-gay bullying. In particular, the court interpreted Title IX's prohibition on sex discrimination to include discrimination against individuals because of their failure to conform to sex stereotypes, which the bullied plaintiff had sufficiently alleged. See Seiwert ex rel. S.S. v. Spencer-Owen Community School Corp., 2007 WL 2020174 (S.D. Ind. Jul 06, 2007).

A good analysis of the case is posted at the Sexual Orientation and the Law Blog (the newest addition to our blogroll). For my part, I'll try to put this decision in the context of other cases involving Title IX and harassment of gay students.

Title IX protects against discrimination on the basis of sex, not sexual orientation. The sex stereotyping rationale allowed courts to sidestep an outcome, seen in some employment discrimination cases, that gay students are out of luck. By viewing gender nonconformity, rather than sexual orientation, as the basis for harassment and discrimination, courts have held that Title IX protects against some forms of discrimination against gay and lesbian students. See Montgomery v. Indep. Sch. Dist. No. 709, 109 F. Supp. 2d 1081 (D. Minn. 2000); Snelling v. Fall Mountain Reg'l Sch. Dist., 2001 WL 276975 (D.N.H., Mar. 21, 2001).

However, the Seiwart decision bucks what seems to be more recent trend of finding such protection exists without relying the sex stereotyping rationale. Some courts have treated sexual orientation discrimination as a subset of sex discrimination. For example, a federal court in Connecticut recently held that verbal taunting of a female student, which included "a variety of pejorative epithets, including ones implying that she is a female homosexual" is discrimination on the basis of gender -- "If not for her status as a female, a reasonable trier of fact could conclude that [plaintiff] would not have been called the offending slurs." See Riccio v. New Haven Bd. of Educ., 467 F. Supp. 2d (D. Conn. 2006). Similarly, a federal court in California held that a student who is targeted for harassment on the basis of his "perceived sexual status as a homosexual," is subject to harassment that is "sexual in nature," which is, necessarily, discrimination on the basis of sex. Ray v. Antioch Unified Sch. Dist., 107 F. Supp. 2d 1165 (N.D. Cal. 2000); see also Martin v. Swartz Creek Community Schs., 419 F. Supp. 2d 967 (E.D. Mich. 2006).

This sexual-orientation-discrimination-as-sex-discrimination rationale could potentially offer more protection to gay and lesbian students than the sex stereotyping rationale because it does not foreclose students who cannot prove that their gender nonconformity is what motivated their harassers. An openly gay but macho guy, for example, might have difficulty demonstrating that he was targeted for harassment because of his atypical presentation of masculinity.