December 22, 2015 at 1:31 pm EST | by Chris Johnson
In new trend, courts see anti-gay bias as gender discrimination
A growing number of courts are determining anti-gay discrimination constitutes gender discrimination under current law.

A growing number of courts are determining anti-gay discrimination constitutes gender discrimination under current law.

LGBT people lack explicit protections in federal law against discrimination, but a growing number of courts are determining anti-gay discrimination constitutes gender discrimination under current law.

Just last week, a federal court in California allowed a case against the Christian-affiliated Pepperdine University to proceed on the basis it may have violated the prohibition against gender bias under Title IX of the Education Amendments of 1972 by engaging in anti-gay discrimination against members of the women’s basketball team.

U.S. District Judge Dean Pregerson, a Clinton appointee, found in a 22-page ruling discrimination on the basis of sexual orientation and discrimination on the basis of gender are one and the same.

“After further briefing and argument, the Court concludes that the distinction is illusory and artificial, and that sexual orientation discrimination is not a category distinct from sex or gender discrimination,” Pregerson writes. “Thus, claims of discrimination based on sexual orientation are covered by Title VII and IX, but not as a category of independent claims separate from sex and gender stereotype. Rather, claims of sexual orientation discrimination are gender stereotype or sex discrimination claims.”

Courts in the past have determined sexual-orientation discrimination is distinct from gender discrimination, or at least the line between the two is blurry. However, Pregerson writes “the line between sex discrimination and sexual orientation discrimination is ‘difficult to draw’ because that line does not exist, save as a lingering and faulty judicial construct.”

According to the decision, Pepperdine University allegedly discriminated against two members of the women’s basketball team, Haley Videckis and Layana White, based on the perception they’re lesbians and were in a same-sex relationship.

Adi Conlogue, an athletic academic coordinator of the team, allegedly in 2014 would hold meetings with each of the players to determine their sexual orientation as opposed to focusing on their academics, asking questions about their relationships and whether they slept with their beds together.

In May 2014, Ryan Weisenberg, head coach of the Pepperdine women’s basketball team, held a team meeting to speak out against lesbianism, saying it’s why team lose and it wouldn’t be tolerated.

After complaints from the plaintiffs, coaching staff as part of an effort to force them to quit the team changed time cards to make it appear they were late to training periods, falsely accused them of academic cheating and made inquiries about whether they were dating. At one point, White attempted to commit suicide.

A spokesperson for Pepperdine University said the school intends to fight the charges in the aftermath of the court allowing the case to proceed.

“Although we are disappointed by the court’s ruling on Pepperdine’s motion to dismiss, we look forward to presenting the facts in response to plaintiffs’ allegations through the appropriate legal channels,” the spokesperson said. “The University remains committed to a diverse and inclusive environment.”

The Pepperdine decision is the latest in a series of rulings in which federal courts have determined anti-gay discrimination constitutes gender discrimination under current law. Some of these determinations were the result of workplace discrimination lawsuits filed under Title VII of the Civil Rights Act of 1964.

In October, a federal judge in Alabama determined a gay man’s lawsuit alleging workplace discrimination at the Mobile-based Felder Services could proceed under Title VII. (It didn’t do the plaintiff any good because the court determined there was insufficient evidence of discrimination.)

In September 2014, a federal court in Washington State allowed a Title VII case to proceed against BNSF Railway in Washington State for the company’s refusal to allow employees to enroll same-sex spouses in the employer-provided health plan.

In March 2014, a federal court in D.C. over the objections of the U.S. Justice Department refused to dismiss a case filed by Peter TerVeer, who alleged anti-gay workplace discrimination resulting in his termination at the Library of Congress. The case is ongoing before the court.

Tico Almeida, president of the LGBT group Freedom to Work, said the Pepperdine decision “builds greater momentum” for nationwide legal protections to ensure LGBT people have a fair shot in employment, education and housing.

“This California federal court follows federal courts from Alabama to Washington state to Washington, D.C. that have already ruled that sexual orientation discrimination is outlawed by existing federal statutes that ban sex discrimination,” Almeida said. “We encourage LGBT Americans who face discrimination to file claims with the EEOC and in the federal courts: Don’t let anybody tell you that you can be married at 10 a.m. and fired at noon.”

It wasn’t always this way. In a 2009 decision in Prowel v. Wise Business Forms, the U.S. Third Circuit Court of Appeals determined sexual-orientation discrimination “is not cognizable under Title VII.” In 2005, the U.S. Second Court of Appeals determined in a lesbian’s employment discrimination lawsuit against Bumble & Bumble hair salon Title VII “does not recognize homosexuals as a protected class.” In 2002, a district court ruled in a gay man’s employment discrimination lawsuit against the U.S. Postal Service and determined the law “is relatively clear” sexual-orientation discrimination is permissible under Title VII.

Suzanne Goldberg, a lesbian and co-director of Columbia University’s Center for Gender & Sexuality Law, attributed the shift in thinking to court decisions against laws inhibiting marriage rights for same-sex couples.

“I think the change is, in part, a result of courts growing increasingly adept at seeing anti-gay discrimination when it occurs, where earlier, courts tended to accept anti-gay discrimination as a fact of life and as perfectly acceptable,” Goldberg said. “This shift has accelerated in recent years as many courts have rejected marriage discrimination against gay and lesbian couples. Once that awareness of discrimination is in place, it becomes much easier to the ways in which hostility toward gay people often involves impermissible enforcement of gender roles and norms.”

The concept that anti-gay discrimination is a form of gender discrimination got a big boost in July when the U.S. Equal Employment Opportunity Commission, the agency charged with enforcing employment civil rights law, explicitly announced anti-gay discrimination is covered under Title VII in gay frontline manager David Baldwin’s case against the Federal Aviation Administration. The EEOC already declared transgender discrimination constitutes gender bias under Title VII in the landmark 2012 case Macy v. Holder.

The U.S. Justice Department under former U.S. Attorney General Eric Holder announced in December 2014 it concurred with the EEOC that transgender workplace discrimination amounts to gender discrimination under current law. But the Obama administration has yet to make the same determination for anti-gay discrimination. For a year, the Justice Department hasn’t responded to repeated requests from the Washington Blade to comment on whether anti-gay discrimination constitutes gender discrimination under Title VII.

But the view that anti-gay discrimination constitutes gender discrimination isn’t limited to federal courts. One state court in Massachusetts last week determined anti-gay discrimination constitutes gender discrimination under that state’s law as a result of a lawsuit filed by the New England-based Gay & Lesbian Advocates & Defenders.

In a 21-page ruling, Massachusetts Associate Justice Douglas Wilkins determined Fontbonne Academy, a Catholic girls school, violated the state’s prohibition on sexual-orientation discrimination and gender discrimination. The school rescinded a job offer as food services director to Matthew Barrett on the basis his same-sex marriage is inconsistent with church teachings.

“It may be unnecessary to determine whether the same undisputed facts also amount to gender discrimination,” Wilkins writes. “Nevertheless, it is clear that, because he is male, he suffered gender discrimination when he was denied employment for marrying a person whom a female could have married without suffering the same consequences.”

Perhaps in anticipation schools may be held accountable for anti-LGBT discrimination under current law, an unprecedented number of religious schools have sought and obtained Title IX exemptions from the Obama administration. The law contains a provision allowing religious schools to request from the Department of Education an exemption from full compliance with the law if “application of the law would conflict with specific tenets of the religion.”

In a new report titled, “Hidden Discrimination: Title IX Religious Exemptions Putting LGBT Students at Risk,” the Human Rights Campaign found 56 schools have requested an exemption since 2013 — 33 on the basis of gender identity and 23 on the basis of sexual orientation.

Chad Griffin, president of HRC, said in a statement accompanying the report the Department of Education must take action to ensure the safety of LGBT students at religious schools.

“There is an alarming and growing trend of schools quietly seeking the right to discriminate against LGBT students, and not disclosing that information publicly,” Griffin said. “We believe that religious liberty is a bedrock principle of our nation, however faith should never be used as a guise for discrimination. Prospective students and their parents deserve greater transparency, and we urge the Department of Education to take action by helping to increase accountability and to ensure that no student unknowingly enrolls in a school that intends to discriminate against them.”

Catherine Lhamon, assistant secretary of education for civil rights, said in a statement to the Blade the administration intends to “vigorously enforce” the law against discrimination on the basis of sex, including gender identity, in every applicable school.

“Congress did exempt from Title IX’s protection institutions that are controlled by religious organizations, to the extent that Title IX conflicts with their religious tenets,” Lhamon added. “We are committed to protecting every student Congress gave us jurisdiction to protect, to the fullest extent of the law.”

According to the Department of the Education, the Office for Civil Rights seeks ways to make its enforcement work more transparent, such as publishing lists of institutions under investigation and posting resolution agreements on its website. Early next year, the department plans to make exemption requests and responses to institutions available on the website.

But not every court has reached the view that discrimination against gay people constitutes gender discrimination under current law. Last month, the Western District Missouri Court of Appeals ruled the state’s prohibition on gender discrimination provides no recourse for James Pittman, who alleged the Kansas City-based Cook Paper Recycling Corp. fired him in 2001 after seven years with the company because he’s gay.

Cook Paper president Joe Jurden allegedly made discriminatory comments about Pittman’s sexual orientation before firing him, such as calling him a “cocksucker” and asking him if he has AIDS.

“If the Missouri Legislature had desired to include sexual orientation in the Missouri Human Rights Act’s protections, it could have done so,” Chief Judge James Welch wrote in the majority opinion. “No matter how compelling Pittman’s argument may be and no matter how sympathetic this court or the trial court may be to Pittman’s situation, we are bound by the state of the law as it currently exists.”

Stacey Long Simmons, the National LGBTQ Task Force Action Fund’s director of public policy and government affairs, said court decisions determining anti-gay discrimination constitutes gender discrimination under the law are welcome, but they’re not universal and an explicit federal LGBT law is necessary.

“The federal Equality Act seeks to extend protections against sexual orientation and gender identity discrimination in employment, housing, access to public places, federal funding, credit, education and jury service,” Long Simmons said. “Most court decisions are relevant to only one of these bases, so even where protections are recognized by a court, the Equality Act would broaden the protections to other areas.”

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson attends the daily White House press briefings and is a member of the White House Correspondents' Association. Follow Chris

  • ChloeAlexa Landry

    Bigotry is now condoned by the Government of the USA. Along with not following the Constitution,’ Government shall make no establishment of religion.’ with denial of civil rights of certain People. And why are the News Headlines not showing this information?

    According to this we are no longer living in a FREE Country today. Since when, and why, are religious groups given the right to Void the Civil Rights of a Group of people?? Constitution Trumps Religion I would think and hope.

    “We hold these truths to be self-evident, that all men are created equal,
    that they are endowed by their Creator with certain unalienable Rights,
    that among these are Life, Liberty and the pursuit of Happiness.” — The
    Declaration of Independence.

    Be careful as if you give these religious schools their WAIVERS you will in effect have to give the Muslims their right of Sharia Law. You are opening a very dangerous can of worms, and these worms will come back to BITE !?!?

    • Marla R. Stevens

      They’ve always had that right when it comes to their sacred activities. That’s protected by the First Amendment. The problem is that sometimes they’ve been able to persuade legislators that everything they do is sacred because it is tethered to the sacred mission of the church. That goes too far. I believe the school exemptions being given are too often of the latter instead of being strictly for sacred purposes.

      • Steve Karper

        peperdine- another of these southern baptist/evangelical churches where their founding mission is a four letter word

        HATE

      • Steve Karper

        REligiouss freedom – a curse upon aerica re right wing churches

        We need to crush one thing to really begin freedom from MYTH-EOLOGY

        the BS lie that “gawd gave man free will”

        what kind of loving god would give man free will to do all the horrible things that happen, eg t he mass organized murder called war?

  • Michelle Hackler

    Should not discrimination against trans individuals be also considered gender discrimination. When you discriminate against a transsexual woman you are discriminating against her because of her gender. Even if you still discriminate against a transsexual woman because you claim that she is a man and can never be a woman, you are still discriminating against her because of her gender. When on applications they ask you if you are male or female, they are not asking your sexual attraction, they are asking for your gender or your sex. Shouldn’t mean that all discrimination based upon gender identity is illegal?

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