I’m not gay. They just think I am.  Does the law protect me?

Michael Grabowski, aka “the Plaintiff,” alleges that he is not gay, but the other members of the track team at the University of Arizona thought he was, and hassled him over it for over a year. The plaintiff alleged that he and his parents repeatedly reported this to track coaches who did nothing about it and ultimately kicked the plaintiff off the team and off scholarship because, according to one of the coaches, “there’s a certain atmosphere we are trying to establish on this team, and you do not fit in it.”

Is he the victim of discrimination “based on sex”?  The 9th Circuit says that he is. 

Let’s rewind a bit.  In 2020 the Supreme Court held that Title VII prohibits discrimination based on sexual orientation or transgender status (Bostock v. Clayton County).  The Court was careful to point out that its ruling only applied to Title VII claims, which are about employment.  Does the same standard apply to Title IX claims, which would mean it extends to students?  In Bostock the Court chose not to tell us. 

In the Grabowski case the 9th Circuit weighs in, holding that 1) Bostock applies to Title IX claims; and 2) discrimination based on the perception of a person’s sexual orientation is the same as discrimination based on their actual sexual orientation.  Therefore, the court held that the Plaintiff had alleged facts that, if true, would amount to retaliation in response to his good faith reports of sex-based harassment.  That would be a Title IX violation for which the University could be liable.

So to be clear: the holding here is that Title IX prohibits discrimination that is based on sex, based on sexual orientation, or based on the perception of sexual orientation. 

The other issue presented in this case involves the potential liability of the coaches who were at the heart of this complaint.  Tune in tomorrow for that.

It’s Grabowski v. Arizona Board of Regents, decided by the 9th Circuit on June 13, 2023. It’s cited at 69 F.4th 1110.


Got a question or comment for the Dawg?  Let me hear from you at jwalsh@wabsa.com

Tomorrow: Will the coaches be liable?