Title IX Covers Sexual Orientation Discrimination, Court in Pepperdine Case Rules

Two female athletes are suing Pepperdine University over discrimination they experienced as athletes on the basketball team. They allege that the head coach and other athletic department employees singled them out for unfair treatment because they suspected that the plaintiffs were lesbians and in a relationship with each other, and when they complained about mistreatment, they were forced off the team and lost their scholarships. The athletes sued the university under Title IX and other state laws. And while their case was initially dismissed, the athletes received permission to amend their complaint, and when they did, Pepperdine again moved to dismiss. This time, however, the court denied the university's motion, which means that the plaintiffs can continue to litigate the case and begin preparing for trial.

The court's decision is significant for how it treated Pepperdine's argument that the plaintiffs cannot sustain a claim under Title IX because the statute does not cover discrimination on the basis of sexual orientation. Specifically, the court refused to consider sexual orientation discrimination a separate category of discrimination, but rather, viewed it as a subset of sex discrimination. The court reached this conclusion in two separate ways --  first, by viewing sexual orientation discrimination as a type of gender stereotype discrimination, and second by considering it a matter of  "straightforward" sex discrimination.     

The gender stereotype theory of sex discrimination comes from a 1989 Supreme Court decision, Price Waterhouse v. Hopkins, which applied Title VII's ban on a sex discrimination to a case involving an employer's discrimination against female employee for not behaving sufficiently feminine in the office. Since then, courts have accepted that sex discrimination statutes like Title VII and Title IX protect gays and lesbians (and others) from discrimination when the discrimination against them is not directed at their sexual orientation per se, but at how they dress or publicly express themselves (a woman who dresses too masculine, for example). But courts have rarely extended this idea to its logical end and concluded that that all sexual orientation discrimination is sex discrimination because heterosexuality is a gender stereotype. Notably, however, the decision in this case does exactly that. The court determined that the plaintiffs stated a cause of action under Title IX because they alleged that the coaches and others targeted them for mistreatment because of their perception that the plaintiffs' dating and relationship choices did not conform to feminine stereotypes. ("If the women’s basketball staff in this case had a negative view of lesbians based on lesbians’ perceived failure to conform to the staff’s views of acceptable female behavior, actions taken on the basis of these negative biases would constitute gender stereotype discrimination."). This part of the decision is groundbreaking in its recognition that same-sex sexual orientation is itself a form a gender nonconformity that is protected under Title IX, a conclusion that renders Title IX applicable to all claims of sexual orientation discrimination by gay and lesbian plaintiffs.  

The court also provided a second reason why the plaintiffs' case is actionable under Title IX, separate from the gender nonconformity theory. According to the court, "If Plaintiffs had been males dating females, instead of females dating females, they would not have been subjected to the alleged different treatment. Plaintiffs have stated a straightforward claim of sex discrimination."  This second rationale supports the same groundbreaking conclusion that all sexual orientation discrimination is a form of sex discrimination under Title IX.  

Last July, the Equal Employment Opportunity Commission, the agency that enforces Title VII, made a similar ruling about the relationship between sexual orientation discrimination and sex discrimination. The court in this case cited that decision favorably. These two decisions together are perhaps a sign of early momentum towards an interpretation of sex discrimination laws that would make the need for separate laws prohibiting discrimination based on sexual orientation unnecessary.

Decision: Videckis v. Pepperdine Univ., 2015 WL 8769974 (C.D. Cal. Dec. 14, 2015).