The Ninth Circuit's Monumental Ruling on LGBTQ+ Rights

On Tuesday, June 13, the U.S. Court of Appeals for the Ninth Circuit handed down a major victory for LGBTQ+ youth.

In Grabowski v. Arizona Board of Regents, the unanimous courtheld that Title IX of the Education Amendments of 1972 prohibits discrimination based on sexual orientation in schools. And its logic equally protects transgender students. Title IX’s protections may prove crucial at a time when LGBTQ+ youth are under increasing attacks.

The appeal stems from a lawsuit by a former University of Arizona student-athlete. In a complaint filed in federal court, Michael Grabowski detailed how, after joining the school’s cross-country team, his teammates called him antigay slurs “almost daily.” (Michael isn’t gay, the complaint explains, but his teammates thought he was.) Michael and his parents reported the harassment to his coaches, who failed to take action to stop the harassment, instead urging Michael to “adjust.” Eventually, the complaint alleges, the coaches kicked Michael off the team in retaliation for his complaints.

Michael, represented by Arizona attorney William Walker, sued the school under Title IX, a law against sex discrimination in federally funded schools. Title IX requires schools to address sex-based harassment by students or teachers and forbids them from retaliating against students who report that harassment. But the trial court judge seemed skeptical that Title IX had anything to say about what Michael had suffered. That judge rejected Michael’s argument that Bostock v. Clayton County— the Supreme Court case holding that the employment law Title VII prohibits anti-LGBTQ+ harassment — applies equally to Title IX.

Michael appealed to the Ninth Circuit, the federal appellate court that hears cases from, and creates legal precedent for, huge swaths of the west.

The organization for which I work, Public Justice, filed an amicus, or “friend of the court,” brief, on behalf of itself and 18 other civil rights groups, and in March I participated in oral argument in the case. We argued that Bostock means Title IX prohibits anti-LGBTQ+ discrimination, and so schools must protect, rather than punish, students like Michael who experience harassment based on their real or perceived sexual orientation.

This week, the Ninth Circuit panel, composed of appointees by Presidents Biden, Trump, and Clinton, reversed the district court’s dismissal of the case.

That is cause to celebrate — for Michael, and for LGBTQ+ students nationwide.

The Ninth Circuit was crystal clear: because of Bostock,“discrimination on the basis of sexual orientation is a form of sex-based discrimination under Title IX.” Although the opinion does not discuss the rights of transgender students, its reasoning establishes that Title IX prohibits anti-trans discrimination as well. The Ninth Circuit also explained that Bostock and Title IX protect students, like Michael, who are harassed based on their "perceived sexual orientation, as opposed to actual sexual orientation.” The court reasoned that whether a student is harassed because they are actually gay or because they appear to be gay, their harassers are motivated by sex stereotypes — in Michael’s case, “the stereotype that men should be attracted only to women.” Under Bostock and Title IX, that kind of stereotyping has no place in schools.

I thought, after Bostock, that it was obvious the Supreme Court’s opinion would apply equally to claims under Title IX. Most courts agreed, and so does the Biden administration. But Trump’s lawyers previously tried to make the case that Title IX was different than Title VII, and some courts have seemed reluctant to recognize protections for LGBTQ+ students. So, even though the legal question at issue in Michael’s case shouldn’t have been controversial, it was, and the Ninth Circuit’s clear explanation of the law will help students going forward.

LGBTQ+ students experience alarmingly high rates of harassment in school. And that harassment has concrete effects on their educations — including whether they plan to attend college — and on their mental health.

Sometimes that harassment can be fatal.

Earlier this year, Public Justice settled a case on behalf of the estate and parents of Nigel Shelby, a Black, gay freshman at Alabama’s Huntsville High School who died by suicide after experiencing unchecked harassment based on his sexual orientation and race at school. Hopefully schools will hear the Ninth Circuit’s message loud and clear and start working to prevent and stop this harassment, knowing they may face a lawsuit if they don’t.

The Ninth Circuit’s opinion shows Title IX can also help students who are harassed because others wrongly think they are queer or trans. A nine-year-old cis girl in Canada was reportedly recently harassed at a track meet by a spectator convinced she was trans, apparently because she had short hair — a demonstration that gender policing hurts everyone. If that happened in the U.S., Title IX would require schools to intervene to stop such harassment.

Title IX can also be an effective tool against other forms of anti-LGBTQ+ discrimination. Another appellate court, for example, has held that Title IX and Bostock, together, mean that schools must permit trans students to use the restroom that corresponds with their gender identity. Last month, the U.S. Department of Education’s Office for Civil Rights, which enforces Title IX, found that a Georgia school district may have violated the law when it implemented a book ban that could make LGBTQ+ students feel unsafe and unwelcome at school.

Courts also often look to Title IX when deciding the meaning of other sex discrimination laws. For example, a district court in Texas recently held that a federal anti-discrimination law that prohibits discrimination in health care, known as Section 1557, does not protect against anti-LGBTQ discrimination. Its reasoning? That Bostock doesn’t apply to Title IX, and Section 1557 only prohibits as much sex discrimination as Title IX does. That case, Neese v. Becerra, is currently on appeal to the U.S. Court of Appeals for the Fifth Circuit. (Public Justice has filed an amicus brief in that appeal, too.)

As a lawyer, I’m keenly aware of the limits of the law in creating social change. The rising tide of anti-LGBTQ+ hate across our country won’t be stopped by lawsuits alone, especially given hostility within the judiciary.

But at time of unrelenting attacks on LGBTQ+ people, I’m thrilled for any win. And this is a big one.

Alexandra Brodsky is a staff attorney at Public Justice.