Federal Court Holds Discrimination Against Sex Workers is Sex Discrimination

By: Derek Demeri
On: December 14, 2021

Elegant Woman Ready for a Shoot

In a landmark case, Magistrate Judge Mustafa T. Kasubhai sitting for the District of Oregon held at the summary judgment stage in Gililland v. Southwestern Oregon Community College, et al. that a nursing student who was discriminated against because she was a former adult film performer is sex discrimination prohibited under Title IX. This ruling is a historic victory for sex worker rights and will likely be expanded upon in years to come.

What is the Background of Gililland v. Southwestern Oregon Community College?

In 2017, Nicole Gililland began studying nursing at Southwestern Oregon Community College. Prior to her studies, Gililland was a sex worker and performed in adult films. Like may sex workers, she changed careers and sought to make a new life for herself. Unfortunately, after staff members of the college became aware of Gililland’s previous line of work, they started treating her unfairly including grading her work differently than other students and falsely accusing her of plagiarism. When asked why, one faculty member told Gililland “it takes a classy woman to be a nurse, and unclassy women”—while pointing at Gililland—“shouldn’t be nurses.” After the college expelled Gililland for “receiving” failing grades, Gililland initiated her lawsuit arguing among other things that the college violated federal prohibitions on sex discrimination in education (as known as “Title IX”).

What was the Argument of Nicole Gililland?

Gililland argued that the discrimination she experienced was unlawful sex discrimination under Title IX. This federal law, passed in 1972 as an amendment to the Civil Rights Act of 1964, states in its entirety: “No person in the United States shall, based on sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” Using this law, Gililland asserted the college’s behavior was “gender stereotyping” her (a phrase adopted by the Supreme Court in the 1989 landmark case of Price Waterhouse v. Hopkins to describe when someone does not conform to certain stereotypes about gender).

What was the Position of Southwestern Oregon Community College?

The college, in turn, contended that Gililland was not protected by Title IX because her “employment history is not a protected status.” Further, the college put forth that gender stereotyping only applied to LGBTQ+ cases of discrimination and should not be used to support Gililland’s claim of sex discrimination.

How did the Federal Court Rule in this Case?

Judge Kasubhai first rejected the college’s argument about gender stereotyping, which he described as “an approach that would bar people who identify as heterosexual or cisgender from bringing Title IX claims based on gender stereotypes.” The judge then rejected the college’s framing of Gililland’s claim as based on employment history discrimination calling it a “red herring.” Rather, he determined the “heart of this analysis” is “the kind of woman . . . that [the college] perceived [Gililland] to be because of her employment history.”

Most importantly, Judge Kasubhai found that the facts alleged by Gililland—which were “intrinsically connected” to Gililland’s employment history—could constitute sex discrimination because the comment about classy women “advanced a stereotype about the kind of woman appropriate for the nursing profession.” As such, the judge concluded “a jury could determine that [the college instructor] relied on Plaintiff’s prior employment as an adult film actress to conclude that [Gililland] was an ‘unclassy’ woman unfit to be a nurse.”

Implications of Sex Discrimination Against Sex Workers in Employment Law

This case is the latest in an emerging area of employment discrimination law that recognizes how discrimination against sex workers is intimately tied to sex discrimination. Zeff Law Firm Attorney Derek J. Demeri is one pioneer in this area of law, first writing about it in a published law journal article for the Rutgers University Law Review. Nicole Gililland’s bravery in bringing her lawsuit forward will undoubtedly inspire more sex workers to come forward with similar stories of discrimination, and further develop this area of law.

Questions About Sex Discrimination and Sex Workers’ Rights in the Workplace

At Zeff Law Firm, we believe sex work is work and that nobody should be discriminated against because of their status as a current or former sex worker. We are always staying up to date with the latest court opinions on sex discrimination and considering how these decisions could affect our clients. In this way, we are able to advise our clients accurately and efficiently under the current legal landscape. If you have questions or concerns about sex workers’ rights in the workplace, contact our offices today.

 

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