Ninth Circuit declares harassment based on ‘perceived sexual orientation’ unconstitutional under Title IX

The Court of Appeals argued that Title IX protects ‘perceived sexual orientation.’

The Ninth Circuit Court of Appeals overruled Arizona district court’s dismissal of a University of Arizona student’s harassment lawsuit based on a false sexual identification.

The Ninth Circuit Court of Appeals ruled on June 13 that Title IX protections apply to a new category: “perceived sexual orientation.”

Michael Grabowski was a first-year student in 2017 at the University of Arizona. He enrolled in Cross Country and Track and Field, and during that year’s pre-season training in August, he reported his teammates mistook him for a homosexual and callled him unwelcome names.

The court’s summary of the facts relate that the harassment continued for a year until Grabowski notified school authorities in August 2018. However, his report drew from the school “a concerted effort … to demoralize him,” including running him at [a track meet?] while he endured a viral infection.

Allegedly, in September 2018, Director Fred Harvey “leapt out of his chair, ran up to within a few inches of Plaintiff’s [Grabowski’s] face, slammed his hands down hard on Plaintiff’s arms … and called Plaintiff a … ‘white racist.’”

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Afterward, in 2019, Grabowski filed suit against the University of Arizona.

While the District Court of Arizona originally dismissed Grabowski’s claims, the Ninth Circuit Court received his appeal and reasoned that Title IX protections could apply to his circumstances if the alleged harassment and retaliation were conducted “on the basis of sex.”

In its opinion, the court declared that if sexual orientation was a protected class under Title VII of the Civil Rights Act—as the Supreme Court ruled in Bostock v. Clayton County—then why shouldn’t the same apply to Title IX?

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The difficulty was that by his own admission, Grabowski is not gay. Rather, Grabowski argued, his teammates believed him to be gay.

In Price Waterhouse v. Hopkins, the Supreme Court ruled that the defendant’s perception of of Ann Hopkins’ womanness as too “macho” was unconstitutional grounds for overlooking her as a potential promotion. Using the Price Waterhouse decision as its basis, the Ninth Circuit Court of Appeals concluded, “That reasoning applies ‘with equal force to a man who is discriminated against for acting too feminine.’”

The University of Arizona and Fred Harvery were both contacted for comment. The article will be updated accordingly.