Monday, July 02, 2007

Law Review Article on Sexual Orientation Discrimination in College Sports

Professor Barbara Osborne of UNC has published "No Drinking, No Drugs, No Lesbians: Sexual Orientation Discrimination in Intercollegiate Athletics" in the current issue of the Marquette Sports Law Review (citation: 17 Marq. Sports L. Rev. 481 (2007)). Professor Osborne uses recent instances of discrimination against gay athletes and those perceived as gay, including former Penn State Coach Rene Portland's exclusion of basketball player Jennifer Harris and Florida coach Karen Johns's discrimination against Andrea Zimbardi, as context to examine the legal recourse available to such players.

Neither the Equal Protection Clause of the Constitution, its state constitution counterparts, nor any federal antidiscrimination laws like Title IX or Title VII expressly cover discrimination on the basis of sexual orientation. But some courts have construed existing protection against sex discrimination to apply when the plaintiff suffered discrimination for her or his failure to conform to gender stereotypes. However, courts have not held that being gay or lesbian per se is a failure to conform to gender stereotype and actionable as sex discrimination. Thus, the gender stereotype theory of sex discrimination is only potentially available so some (perceived) gay plaintiffs -- those who faced discrimination regarding their appearance or behavior, rather than on the solely who they date, are attracted to, and sleep with (or are believed to sleep with).

Osborne also believes that the gender stereotype theory of sex discrimination is particularly incompatible with discrimination claims that arise in the context of athletics, as she explains:
Female athletes are caught in a socio-cultural contradiction--to be an athlete is to be masculine, automatically calling the athlete's femininity into question. When a woman's femininity is challenged, her sexuality is questioned as well. In essence, being a female athlete itself is a failure to conform to accepted gender stereotypes.
Owing to these difficulties and uncertainties arising from the gender stereotype theory, Osborne argues that universities should adopt policies specifically protection against discrimination on the basis of sexual orientation.


Anonymous said...

SOS: The situation consist of two division 1 players, one openly gay and one is not. They both break a team rule of having a relationship and one is place on suspension and the other is not. To make all this seem on the up an up additional petty issues on placed on the suspensed player which were not a issue before and involed other players as well. IS THIS SEXUAL ORIENTATION DISCRMINATION?

Anonymous said...

Are schools allowed to tell players what type of relationship or person they may or may not have a relationship with. What can be done to put a stop to this pactice. I need help, please point me the right direction.

Adele said...

I hear the same story all the time, and you've probably heard it too:

A woman who is sexually repressed and disinterested in her man, with a long list of things she won't do in bed or that she thinks are "gross"... ends up cheating or finds herself dating a new guy, and suddenly she is insatiable and enthusiastically doing EVERYTHING she used to swear she would never do!

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Watch out! She turns into a wild animal of lust and desire!

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What switches it on?


Novelty (a new guy she hasn't been with before), danger, forbidden romance, fun flirting... all of these things can easily flip it on temporarily...

But the reliable, biological, and long-term control over her Playmate Switch has to do with YOUR male behaviors-- behaviors that many men either repress or simply lose touch with over time.

Allman insists that this stuff is simple and natural, but it takes a level of sexual confidence and a willingness to actually try.

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They love it, it's natural, fun, sexy, and beautiful for them to have those feelings and emotions around you. They are rooting for you to figure this out!

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