LGBT

Federal Judge Explains Why ‘Sexual Orientation’ Discrimination Is ‘Sex’ Discrimination

CREDIT: Shutterstock/Steve Heap

At Pepperdine University, a private college in California affiliated with the Churches of Christ, two students are suing over discrimination. After repeatedly being harassed by coaching staff about whether they were lesbians and in a relationship with each other, they were eventually forced off the school’s basketball team, losing their scholarships as a result.

The students, Hayley Videckis and Layana White, filed a complaint under Title IX, which protects against discrimination on the basis of “sex” in education. Like Title VII, which similarly protects against discrimination on the basis of “sex” in employment, Title IX does not specify protections based on sexual orientation. Title IX cases often defer to Title VII for guidance, and though the Equal Employment Opportunity Commission has ruled that sexual orientation is protected, no court has yet ruled interpreted either provision as such.

But this week, U.S. District Judge Dean Pregerson ruled that their complaint can move forward. Though he did not rule on the final merits, he did take time to explain why “sexual orientation” is covered under “sex,” and why other courts have erred by thinking otherwise. Pregerson had previously expressed skepticism about the women’s complaints, but acknowledged now that he should not have.

“This Court, in its prior order dismissing in part Plaintiffs’ FAC, stated that ‘the line between discrimination based on gender stereotyping and discrimination based on sexual orientation is blurry, at best,” he wrote. “After further briefing and argument, the Court concludes that the distinction is illusory and artificial, and that sexual orientation discrimination is not a category distinct from sex or gender discrimination.”

Pregerson observed that other courts’ struggles to consider sexual orientation complaints actually point to a simple conclusion. “The line between sex discrimination and sexual orientation discrimination is ‘difficult to draw’ because that line does not exist, save as a lingering and faulty judicial construct.”

What he noticed is that sexual orientation discrimination cases seem to focus on the alleged victims, such as their actions or appearance. This “asks the wrong question and compounds the harm,” because their “actual” sexual orientation is irrelevant. “It is the biased mind of the alleged discriminator that is the focus of the analysis,” he wrote, noting that sexual orientation identities exist on a continuum.

Pepperdine has actually argued that because the women tried to hide their relationship, they could not have ever made a complaint about experiencing discrimination. “This argument is without merit,” Pregerson countered. Videckis and White report complaining to coaches and administrators on multiple occasions about the way they were being interrogated and harassed. Their sexual orientation and relationship status are irrelevant, he explained, because it diverts focus from “the bias of the alleged harasser” and “imposes a burden that Title IX does not contemplate.”

“It is absurd to demand a victim of alleged sex discrimination based on sexual orientation prove she is a lesbian. The contrary view would turn a Title IX trial into a broad inquisition into the personal sexual history of the victim. Such an approach should be precluded as not only highly inflammatory and offensive, but also irrelevant for the purposes of the Title IX discrimination analysis.”

Thus, he concluded, “it is impossible to categorically separate ‘sexual orientation discrimination’ from from discrimination on the basis of sex or from gender stereotypes; to do so would result in a false choice.”

Videckis and White were subjected to stereotypes about lesbianism and sexuality, which “stem from a person’s views about the proper roles of men and women — and the relationships between them.” If the staff’s harassment was 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.”

Likewise, if they had been males dating females, instead of females dating females, “they would not have been subjected to the alleged different treatment.”

Pepperdine has a history of advocating against its LGBT students. In 2012, the university refused to recognize the LGBT Legal Society as a student group for several months because the group violated the Student Organizations Handbook. It stated, “Engaging in or promoting conduct or lifestyles inconsistent with biblical teaching is not permitted.”

Recently, dozens of private religious schools have sought waivers from the federal government that exempt them from portions of Title IX. These universities explicitly argue that their religious beliefs require them to refuse to serve LGBT students. Pepperdine, however, has not filed for such a waiver.

Pregerson’s ruling is by no means final. Still, he lays out a compelling argument for protecting gay, lesbian, and bisexual people under existing law. In contrast, a Missouri appeals court ruled in October that a man who experienced overt anti-gay discrimination in the workplace — including being called a “cocksucker” and being asked if he had AIDS — was entitled to no legal relief.