An illogical and cruel legal fiction has taken hold in the sexual harassment jurisprudence: Title IX, the statute specifically designed to prohibit harassment based upon sex, does not apply to harassment based upon sexual orientation. Although harassment based upon failure to fulfill gender stereotypes is considered discrimination based on sex, harassment based on sexual attraction to members of one’s own sex is not discrimination based on sex. If you wonder how sexual attraction is not sex but effeminate characteristics are sex, you are not alone. This article critiques the legal fiction that leaves gays without protection from harassment that, if directed at a heterosexual, would clearly be prohibited under Title IX.
Daniel B. Weddle, YOU’D BE OKAY IF YOU WEREN’T SO GAY: ENDING THE SPECIAL TREATMENT OF LGBT STUDENTS UNDER TITLE IX, 35 W. New Eng. L. Rev. 425 (2013), http://digitalcommons.law.wne.edu/lawreview/vol35/iss2/5