The Cruelest of the Gender Police: Student-to-Student Sexual Harassment
and Anti-Gay Peer Harassment Under Title IX
72 Pages Posted: 8 Jun 2010
Date Written: 1999
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.
Keywords: peer sexual harassment, sexual harassment, anti-gay harassment, sex discrimination law, Title IX, gender equity, gender-role policing, school liability, sex stereotypes, equal protection, anti-gay harassment, Davis v. Monroe County Board of Education
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