By Claire Williams*
Although society has become more accepting of gay, lesbian, bi-sexual, and transgender individuals, sport has largely been resistant to change. Mainstream sporting venues both exclude and demonize queer athletes and fans through strategies such as homophobic language, misogyny, and sexism. Victims of sexual orientation harassment and discrimination are often silenced for fear of repercussion and may be unaware that legal protection exists which prohibits such actions. One such result of this silencing is that no court has ruled in a case of sexual orientation harassment or discrimination in athletics. It is nonetheless important for coaches, student-athletes, and their legal council to be aware of various legal courses of action. In what follows, a brief description will be given of various laws and their applicability to sexual orientation harassment and discrimination in interscholastic and intercollegiate athletics.
While Title IX has largely been applied as a gender equity law, most notably in athletics, it also prohibits both sex- and gender-based sexual harassment, as well as sexual orientation harassment if the harassment rises to a level that is sufficiently severe and pervasive. First, in Gebser v. Lago Vista Independent School District (1998), the U.S. Supreme Court set precedent when it ruled that schools can be held liable for teacher-against-student sexual harassment if the school knows of the harassment and does nothing to rectify the situation. Next, in Davis v. Monroe County Board of Education (1999), the U.S. Supreme Court ruled that student-against-student sexual harassment is impermissible under Title IX if the harassment becomes so extreme that the victim’s educational experiences are harmed. Each of these cases applies to coach-against-athlete and athlete-against-athlete sexual harassment as well.
At the federal district court level, in Montgomery v. Independent School District No. 709 (2000), the court ruled that Title IX prohibited harassment targeted at student Jesse Montgomery’s nonconformance to the stereotypes of his gender, thus resulting in the prohibition of gender-based sexual harassment. Finally, in another district court ruling, (Ray v. Antioch Unified School District (2000)), the court concluded that Title IX prohibits harassment based on actual or perceived sexual orientation.
Through the above case law, harassment targeted at sex, gender, and sexual orientation have been prohibited under Title IX. Sexual orientation discrimination, though, when it does not rise to a level of harassment, is not an actionable Title IX claim. However, it is instructive to note that Title IX guidelines have evolved via case law since its passage into law in 1972. As the original intent of Title IX was “to avoid the use of federal resources to support discriminatory practices in education programs and to provide individual citizens effective protection against those practices,” it follows that sexual orientation discrimination should similarly be prohibited by Title IX.
Equal Protection Clause of the 14th Amendment
Where Title IX falls short of prohibiting sexual orientation discrimination, student-athletes may find recourse through the Equal Protection Clause of the 14th Amendment. In Nabozny v. Podlesny (1996), the court stated that it was “unable to garner any rational basis for permitting one student to assault another based on the victim’s sexual orientation,” thus, leading to a prohibition of sexual orientation harassment under the Equal Protection Clause. The court, however, did not draw a clear distinction between harassment and other forms of discrimination, instead using the two terms interchangeably.
Confirming the ruling in Nabozny, the court ruled in Flores v. Moran Hill Unified School District (2003), that students discriminated against due to their sexual orientation were protected under the Equal Protection Clause because it is unconstitutional to “treat persons similarly situated” differently. Importantly, however, the court used a mild level of scrutiny to determine its ruling. In future cases, the courts may be able to justify sexual orientation discrimination if a stricter level of scrutiny is applied. Finally, although neither of these cases was decided at the Supreme Court level, their decisions suggest that the Equal Protection Clause may offer legal protection for student-athletes facing sexual orientation harassment and/or discrimination.
Other Legal Protection
Title VII, the First Amendment, and university non-discrimination policies also offer potential legal courses of action for student-athletes facing sexual orientation discrimination, however, they have yet to be proven effective. Additionally, thirteen states (California, Connecticut, Hawaii, Massachusetts, Iowa, Maine, Maryland, Minnesota, New Jersey, New York, Vermont, Washington, and Wisconsin) plus the District of Columbia have statutes or regulations prohibiting harassment or discrimination on the basis of sexual orientation in educational facilities.
Until significant changes occur in federal law, however, it is important for sport managers and coaches to establish broad and inclusive nondiscrimination policies. Such policies should include sex and gender, as well as sexual orientation, gender identity, and gender expression. Further, both state and local legislatures should work to pass protective laws against the aforementioned forms of discrimination. Once such policies are in place, athletic departments must be proactive in establishing an atmosphere of acceptance, respect, and inclusiveness in order to reduce the chance of litigation.
Finally, an important step to eradicating homophobia and heterosexism in interscholastic and intercollegiate athletics is for administrators, coaches, and student-athletes to stand up, as a team, for the rights of their teammates facing harassment or discrimination.
*Williams is an instructor in the Sport, Fitness and Health program at Ohio State University. She can be contacted at Williams.email@example.com