​The U.S. Court of Appeals for the Ninth Circuit recently held that harassment based on perceived sexual orientation constitutes sex discrimination under Title IX, extending the holding from the U.S. Supreme Court's Title VII decision in Bostock to Title IX cases.

What you need to know:

• In light of Bostock v. Clayton County, ––– U.S. ––––, 140 S. Ct. 1731 (2020), which extended the umbrella of Title VII sex discrimination to include sexual orientation discrimination, several courts have concluded, and federal agencies have asserted, that Title IX's prohibition on discrimination on the basis of sex includes claims of discrimination on the basis of sexual orientation. 
• In the recent case of Grabowski v. Arizona Board of Regents, No. 22-15714, 2023 WL 3961123 (9th Cir. June 13, 2023), the Ninth Circuit clarified that not only does Title IX prohibit discrimination on the basis of sexual orientation, it prohibits discrimination on the basis of perceived sexual orientation as well.

​In Grabowski, decided by the Ninth Circuit on June 13, 2023, the plaintiff alleged that when he was a first-year student-athlete on the track team at his university, his teammates subjected him to "sexual and homophobic bullying" because they perceived him to be gay. He brought suit against a number of defendants, including the university's Board of Regents and various athletics personnel, alleging both retaliation and deliberate indifference to his reports of sexual harassment in violation of Title IX. He also brought claims under 42 U.S.C. § 1983 and sought punitive damages.

The plaintiff did not allege that he was gay, but that he was subjected to a barrage of homophobic abuse, including the use of slurs and the posting of a harassing video about plaintiff in the team's group chat. He further alleged that he reported the conduct to athletics staff numerous times, but they denied knowledge of any bullying and instead portrayed plaintiff as the problem, telling him he did not fit in. Plaintiff alleges that this retaliation culminated in an incident in which a coach came close to his face, "slammed his hands down on Plaintiff's arms," and accused him of racism, which the plaintiff says scared him so badly that he "had a spontaneous bloody nose and fainted." After this, he was dismissed from the team, and brought suit.

Plaintiff appealed the district court's dismissal of his claims to the Ninth Circuit, which affirmed the dismissal of all of his claims except the Title IX retaliation claim. In affirming dismissal of the Title IX harassment claim, the court emphasized that the plaintiff had not adequately pleaded that the alleged harassment deprived him of any educational opportunity. However, in reaching that conclusion, the court conducted a thorough analysis of whether the alleged harassment itself would otherwise be actionable, and held that it would be, prompting the court to overturn the dismissal of the retaliation claim.

In concluding that discrimination based on perceived sexual orientation constitutes discrimination based on sex for the purposes of Title IX, the court relied on three lines of Title VII cases, noting that courts look to Title VII case law for guidance on Title IX cases. Specifically, the court relied upon:

• Bostock, for the proposition that harassment "because of" sexual orientation is a form of sex discrimination;
• Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), for the proposition that plaintiffs may bring discrimination claims under the theory that their harassers perceived them as not conforming to traditional gender norms (in that case, passing over a female manager for promotion because she was "macho"); and
• EEOC v. Abercrombie & Fitch Stores, Inc., 575 U.S. 768 (2015), for the proposition that "perceived as" discrimination claims are viable (in that case, failure to hire an applicant wearing a headscarf based on the assumption that she was a Muslim who would require a religious accommodation in the form of an exception to the employer's dress code).

The court extended these rationales to Grabowksi's claim of discrimination on the basis of perceived sexual orientation, concluding that the harassment "stemmed from the belief that the male Plaintiff was attracted to men instead of women" and was "motivated by the stereotype that men should be attracted only to women," at heart a "core belief that men should conform to a particular masculine stereotype."

To the extent that an institution receives a report of discrimination or harassment based on perceived sexual orientation or gender identity, even when the individual affected by the alleged discrimination does not allege that they actually share the targeted identity, the institution should treat the "perceived as" claim as it would a claim based on actual sexual orientation or gender identity. The U.S. Department of Education ("ED") had, long before this case, issued guidance in the form of a Notice of Interpretation clarifying that, in light of Bostock, discrimination based on sexual orientation and gender identity do implicate Title IX; this point is expected to be codified in ED's upcoming Title IX rulemaking.