In April 2017, Kentucky middle-school chorus teacher Nicholas Breiner came out as bisexual on Instagram. In May 2017, he got a pink slip.
Now, Breiner has filed a federal discrimination lawsuit against the Montgomery County Board of Education, alleging that he was discharged because of his sexual orientation.
The complaint, which was filed in the U.S. District Court for Eastern Kentucky on May 3 and reviewed by The Daily Beast, alleges that Breiner was “questioned about his sexual orientation” by a school official after coming out on social media, that he then began receiving “harassing phone calls during class and unfavorable evaluation,” and that he was ultimately discharged because of his bisexuality.
The complaint alleges that the McNabb Middle School principal told Breiner that he had been given a pink slip “due to budget constraints”—but then, two months later, Breiner “discovered that his position… was taken by a heterosexual female.”
Breiner has since set his Instagram account to private, but as the Lexington Herald-Leader reported last year, the caption of his coming-out post indicated that he wanted to show support for his LGBT students: “I felt that they needed to know there was someone in the room that understood and supported them, regardless of who they were. As terrifying as it was to admit, I had to value someone else’s well-being over my own privacy.”
Breiner’s lawsuit seeks damages and back pay for his subsequent termination, alleging that his termination constitutes a violation of Title VII’s prohibition on sex discrimination.
The Montgomery County Board of Education did not immediately respond to The Daily Beast’s request for comment, but as the Lexington Herald-Leader reported earlier this week, Superintendent Matthew Thompson has previously denied that Breiner was terminated for being bisexual—and further characterized the termination as a “non-renewal” instead. (As the Herald-Leader further reported, Breiner has also filed a separate suit in Montgomery Circuit Court based on the same set of allegations.)
The success of Breiner’s lawsuit will depend, of course, on the facts of the case but also on the legal reasoning that the ban on sex discrimination written into Title VII of the 1964 Civil Rights Act applies to sexual orientation.
In February of this year, as Reuters and other outlets reported, the Second Circuit Court of Appeals held in 10-3 that it does, reversing a prior position, and writing in its ruling that the 1964 legislation can be interpreted “go beyond the principal evil” it was intended to prohibit “to cover reasonably comparable evils.”
That means, as Reuters noted, that two Circuit Courts and the Equal Employment Opportunity Commission have now maintained that Title VII covers discrimination based on sexual orientation.
Breiner filed a discrimination complaint with the EEOC last year and received a Notice of Right to Sue letter this March, as the complaint notes.
Breiner’s termination last year sparked a small public protest, with 30 people gathering to support the teacher outside the county courthouse, as the Herald-Leader reported.
“We all really feel that it comes down to his sexuality, and that’s a load of crap,” one parent told the paper. “He’s a great educator.”
Pew Research Center data shows that bisexual people are “much less likely than gay men or lesbians to have ‘come out’ to the most important people in their life”—and 31 percent of non-LGBT respondents to the latest GLAAD Accelerating Acceptance survey said that they would be “very” or “somewhat” uncomfortable having their child in a class with an LGBT teacher.
Breiner deferred a request for comment from The Daily Beast to his attorneys, who did not immediately respond.
Last year, however, Breiner told the Herald-Leader that school officials had cautioned, “We live in a small town,” after he came out on Instagram.
Breiner said that he came out, in part, because of the number of suicide attempts that LGBT students had made—including some cases in which he “personally intervened.”
“For years, it was my opinion that my sexual orientation was my business and nobody else’s,” Breiner told the Herald-Leader. “But when your children are in danger, you must re-evaluate.
“It’s impossible to know,” the teacher continued, “but the chance that the knowledge that I am bisexual could save one child… is more important than over a decade of living in the closet.”