The federal ban on sex discrimination in education includes a ban on sexual orientation discrimination, a federal judge in California ruled this past week.
U.S. District Court Judge Dean Pregerson’s ruling appears to be the first time a federal judge has made this ruling as it pertains to Title IX of the Education Amendments of 1972, the federal ban on sex discrimination in education.
Without much fanfare, advocates and federal officials in recent years, with support from some courts, have undertaken a significant effort to expand the reach of existing federal anti-discrimination laws — primarily Title VII of the Civil Rights Act of 1964 and Title IX — to cover lesbian, gay, bisexual, and transgender people from discrimination.
The California case was brought by two women who allege that Pepperdine University “discriminated against and harassed them” because of their perceived sexual orientation.
Discussing “the line between discrimination based on gender stereotyping and discrimination based on sexual orientation,” Pregerson wrote, “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.”
Simply put, 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. …
In sexual orientation discrimination cases, focusing on the actions or appearance of the alleged victim of discrimination rather than the bias of the alleged perpetrator asks the wrong question and compounds the harm. A plaintiff’s “actual” sexual orientation is irrelevant to a Title IX or Title VII claim because it is the biased mind of the alleged discriminator that is the focus of the analysis. This is especially true given that sexuality cannot be defined on a homosexual or heterosexual basis; it exists on a continuum.
So there’s no such thing as homosexuality or heterosexuality? Really? If Judge Pregerson has defined homosexuality and heterosexuality out of existence, then no wonder he sees no distinction between discriminating on the basis of male and female, and discriminating on the basis of same-sex romantic relationships.
To be sure, Judge Pregerson’s ruling only allows the case against Pepperdine to go forward. He has not ruled on the ultimate merits of the claim against Pepperdine, a Christian university,, only that the claim does have sufficient merit to proceed forward to trial.
If Pepperdine is found guilty of a Title IX violation, it could lose federal funding, though that has never actually happened; what is more likely is that the school would have to pay damages to the plaintiffs. The precedent would be chilling, though, for religious liberty, and set up a major First Amendment clash in the courts.
It’s all happening so fast, isn’t it? How can you dispute these people when they and their allies change the rules on, well, reality, in order to get what they want? People send me e-mails all the time pointing out that we orthodox Christians have to stay in the public square and fight for our liberties, not do a Benedict Option withdrawal. I point out to them that nothing about the Benedict Option says we are obliged to quit fighting; in fact, I think it’s very important that we fight, even though the odds are stacked against us, if only because the fight delays the inevitable, and gives us time to prepare. The Benedict Option is in part our plan for when we have been defeated in court. What then? For the faithful, what form does the resistance take?