Two basketball players sued Pepperdine University this week, alleging that their coach and their academic advisor harassed and discriminated against them on the basis of their sexual orientation and the perception that they were in a relationship with each other. The lawsuit filed by Haley Videckis and Layana White maintains that the conduct of these university officials amounts to violations of Title IX and their constitutional rights to privacy.
The complaint provides examples of the conduct of head women Ryan Weisenberg that are reminiscent of Jennifer Harris's case against Penn State and Rene Portland back in 2006. He and the academic advisor allegedly made repeated inquiries into the dating and sexual habits of the two players, and also asked other players whether"Hayley and Layana are dating." He is quoted as stating, "Lesbianism is not tolerated on this team," which the players perceived as a threat to pull their scholarships. Both players are apparently benched at the moment, for ostensible medical reasons that the plaintiffs allege are pretext for discrimination. They allege that the harassment has caused emotional distress, including one of the plaintiffs to attempt suicide.
Despite these overall similarities with Harris v. Portland (which settled on terms favorable to the plaintiff), there is one seeming difference that could make a difference in whether it is actionable under Title IX. The Pepperdine plaintiffs do not appear to allege that the coach's discrimination targeted them for harassment due to their gender nonconforming appearance or behavior, only their status as lesbians (or perception thereof). This is important because Title IX only prohibits sex discrimination, not discrimination on the basis of one's sexual orientation. There is existing legal precedent for the idea that sex discrimination includes discrimination the basis of one's gender nonconforming appearance and behavior, but courts have yet to interpret homosexuality itself as an example of gender nonconformity that is protected under Title IX--even though that makes a great deal of sense. It will be interesting to see whether this case turns into a vehicle to push for an expansive definition of sex discrimination that would be more inclusive of discrimination that targets students who are gay and lesbian.