Title IX, like other sex discrimination laws, addresses discrimination that occurs because of an individual’s sex. Courts interpreting Title IX, like those interpreting Title VII of the Civil Rights Act of 1964, have struggled to demarcate a line separating discrimination because of sex from discrimination because of sexual orientation. This article constructs an argument for viewing anti-gay discrimination, and in particular anti-gay harassment between students, as a form of sex discrimination under Title IX. The article first explores why school inaction in the face of sexual harassment discriminates on the basis of sex. Although sex discrimination law generally has long recognized sexual harassment as a form of sex discrimination, there has been insufficient analysis of why an institution’s failure to remedy sexual harassment violates anti-discrimination law. In keeping with the under-theorization of harassment law, the Supreme Court clearly held in Davis v. Monroe County Board of Education that a school’s indifference to sexual harassment violates Title IX, but it did not fully explain how a school's inaction (or insufficient action) discriminates against students based on sex. By more fully elaborating the theory for why peer sexual harassment discriminates against students because of their sex, this article seeks to ground school indifference to anti-gay harassment as a sex-based wrong as well. In the process, the article examines and rejects four possible theories courts and commentators have suggested for grounding peer sexual harassment as a harm that is based on sex, and settles on a fifth theory that focuses on how the harassment polices gender roles according to sex-based stereotypes. Peer sexual harassment violates Title IX when it punishes gender "outliers," including students perceived as gay or lesbian, and/or reinforces stereotyped gender roles. Adopting a gender-policing theory of harassment under Title IX provides a more complete picture of how peer sexual harassment harms students based on their sex, while at the same time reaching anti-gay harassment under a more satisfactory theory than courts have typically applied.
Deborah L. Brake,
The Cruelest of the Gender Police: Student-to-Student Sexual Harassment and Anti-Gay Peer Harassment Under Title IX,
Georgetown Journal of Gender and the Law
Available at: https://scholarship.law.pitt.edu/fac_articles/368
Civil Rights and Discrimination Commons, Education Law Commons, Gender and Sexuality Commons, Gender Equity in Education Commons, Law and Gender Commons, Law and Society Commons, Sexuality and the Law Commons, Social and Cultural Anthropology Commons