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Volume XII, Number 188


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Can Colleges and Universities be Sued for Sexual Orientation Discrimination and Run Afoul of Title IX?

Title IX claims against colleges and universities have become increasingly prevalent. Title IX provides, in part, that “[n]o person in the United States shall, on the basis of sex … be subjected to discrimination under any education program or activity receiving federal financial assistance.” A recent decision addresses whether the scope of Title IX is broad enough to encompass sexual orientation discrimination claims in a lawsuit.

A federal court in the Central District of California recently denied Pepperdine University’s motion to dismiss the three Title IX claims in the complaint, thus rejecting Pepperdine’s assertion that Title IX does not cover discrimination on the basis of sexual orientation. This ruling is significant because it allows a plaintiff to sue a college or university alleging that discrimination based on sexual orientation is a violation of Title IX. 

The Student-Athletes’ Allegations

In this case, two Pepperdine women’s basketball student-athletes alleged that athletics staff treated them adversely because of their perceived sexual orientation. Specifically, the student-athletes alleged that an academic coordinator frequently questioned them about their sexual orientation and their relationships. They also alleged that members of the coaching staff questioned student-athletes about the sexual orientation of their team members and that the head coach cast homosexuality in a negative light during at least one team meeting. The student-athletes further alleged that they faced retaliation in the form of forced participation in study hall with the alleged aggrieving academic coordinator, refusal to medically clear a student-athlete to participate, refusal to file a legislative relief waiver and eventual dismissal from the team. 

The student-athletes predicated their Title IX claims upon their allegations that they were subjected to sexual orientation discrimination, and that such discrimination is actionable under Title IX. The student-athletes also argued that they suffered gender stereotyping discrimination, which is actionable under Title IX. 

The Court’s Reasoning

The court held that the delineation between sexual orientation discrimination and gender stereotyping discrimination “is illusory and artificial,” and that a sexual orientation discrimination claim is a gender stereotyping or sex discrimination claim. In addition, the court concluded that sexual orientation discrimination also qualifies as sex discrimination and that the actual sexual orientation of the victim is irrelevant so long as the harasser believes that the victim is homosexual and is discriminating as a result. 


This case provides a number of takeaways for colleges and universities. 

While educational institutions have faced claims from the Office for Civil Rights (OCR) that sexual orientation discrimination is a violation of Title IX in administrative proceedings, the court’s recognition of sexual orientation discrimination as a cause of action under Title IX increases the likelihood that educational institutions will face lawsuits alleging Title IX claims and seeking monetary damages.

Second, the court’s interpretation of how sexual orientation discrimination violates Title IX differs from OCR’s interpretation. OCR focuses on the appearance of the victim or whether the victim has self-identified as being homosexual, whereas the court held that this type of assessment is irrelevant, so long as the harasser believes the victim has a particular sexual orientation. Under the court’s standard, institutions accused of violating Title IX due to sexual orientation harassment might not be able to rely on the defense that discrimination did not exist because the victim did not actually fall into the protected class (sexual orientation) or demonstrate characteristics associated with that class. 

Third, this case also serves as a reminder about the importance of proactively training staff who interact with students on campus, especially within athletic departments. In this case, the alleged conduct involved at least four areas of the athletic department: academic affairs, the coaching staff, the athletic training department and athletics administration. Employees need to understand and fulfill their obligation to avoid discriminatory statements and conduct, as well as their duty to report such conduct to the institution’s Title IX coordinator or other designated officials. 

Finally, athletics at colleges and universities raise particular concerns with respect to exposure to Title IX claims. Specifically, many instances have been reported where sexual orientation overtures and innuendos are part of athletic hazing activities and rituals. Institutions should ensure that their programs prohibit this type of conduct in order to maintain an appropriate environment and to avoid a potential violation of Title IX.

©2022 MICHAEL BEST & FRIEDRICH LLPNational Law Review, Volume VI, Number 20

About this Author

Daniel Kaufman, Michael Best, trade secret protection attorney, higher education lawyer,

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