WASHINGTON — The federal ban on sex discrimination in education includes a ban on sexual orientation discrimination, a federal judge in California ruled this past week.
U.S. District Court Judge Dean Pregerson's ruling appears to be the first time a federal judge has made this ruling as it pertains to Title IX of the Education Amendments of 1972, the federal ban on sex discrimination in education.
Without much fanfare, advocates and federal officials in recent years, with support from some courts, have undertaken a significant effort to expand the reach of existing federal anti-discrimination laws — primarily Title VII of the Civil Rights Act of 1964 and Title IX — to cover lesbian, gay, bisexual, and transgender people from discrimination.
The California case was brought by two women who allege that Pepperdine University "discriminated against and harassed them" because of their perceived sexual orientation.
Discussing "the line between discrimination based on gender stereotyping and discrimination based on sexual orientation," Pregerson wrote, "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."
Haley Videckis and Layana White, two former members of Pepperdine’s women’s basketball team, allege in the lawsuit that they faced discriminatory treatment after the team's "[coach] and others on the staff of the women’s basketball team came to the conclusion that Plaintiffs were lesbians and were in a lesbian relationship," as Pregerson wrote. The alleged actions of Adi Conlogue, an athletic academic coordinator for the team, are highlighted in the complaint, as detailed by Pregerson in his ruling.
The decision allows Videckis and White's lawsuit to proceed.
Explaining his reasoning, Pregerson wrote that "claims of discrimination based on sexual orientation are covered by Title VII and IX" — "not as a category of independent claims separate from sex and gender stereotype," but instead because "claims of sexual orientation discrimination are gender stereotype or sex discrimination claims."
A series of agency rulings, administration moves, and court fights in recent years have sought to expand the definition of "sex" in those laws to include gender identity, aimed at anti-transgender discrimination. More recently, the moves have also sought to expand that definition of "sex" to include sexual orientation, aimed at anti-LGB discrimination.
Over the course of the past four years, the Equal Employment Opportunity Commission (EEOC) has led on these issues. In several rulings, beginning in early 2012, the agency has established its view that the sex discrimination ban in Title VII covers anti-transgender discrimination and other discrimination based on gender identity.
Once that was established, at least within the EEOC, the agency ruled — in July of this year — that the same ban also covers anti-gay discrimination and other discrimination based on sexual orientation. Pregerson cited that decision in the ruling allowing the lawsuit against Pepperdine to proceed.
In addition to the EEOC decisions binding federal agencies, the EEOC, as BuzzFeed News reported early this year, also is working to ensure these rulings are being enforced in all its field offices across the country — offices that investigate and attempt to settle discrimination complaints in the private industry.
The Justice Department formally supported the EEOC's position as to gender identity at the end of 2014. Since then, it has taken that position in a handful of court cases, through the filing of statements of interest or amicus curiae briefs in cases from Texas to Virginia.
The Justice Department has not, however, weighed in yet on the sexual orientation question at issue in the lawsuit against Pepperdine University.
Although advances in gay rights might make it seem like the sexual orientation-based argument would have moved before the gender identity-based argument, there were many court rulings explicitly holding that sexual orientation discrimination is not protected by sex discrimination bans, particularly before the Supreme Court struck down sodomy laws as unconstitutional.
Now, however, with sodomy laws struck down and equal protection principles invoked in protecting LGB people's same-sex relationships, agencies and courts have begun rethinking the question — first under Title VII and now under Title IX.
At the same time, the gender identity-related question is proceeding in a case that could reach the U.S. Supreme Court as soon as this fall.
Gavin Grimm, a transgender male student, sued Gloucester County School District in Virginia after the district enacted a policy that bars him from using the male restrooms at the school. The case, now on appeal — and with the Obama administration backing Grimm — is scheduled to be heard by the 4th Circuit Court of Appeals at the end of January.
The losing side there could ask the Supreme Court to take up the case — a move that certainly would raise the stakes of the issue and, undoubtedly, the coverage of it. Already, Sen. Ted Cruz has criticized the administration's position and Hillary Clinton's campaign has announced that she would continue the effort.
Grimm's case, though, only addresses the gender identity-related portion of the argument. Even were that case to be heard by the Supreme Court, the questions raised in the case against Pepperdine University about whether sexual orientation is covered by existing sex discrimination bans would remain unresolved.