A federal judge from the Western District of Washington has sided with the organizers of the Gay Softball World Series (GSWS) on the question of whether three bisexual softball players were discriminated against when the North American Gay Amateur Athletic Alliance (NAGAAA) barred them from competing in the GSWS.
Specifically, the court ruled that “the First Amendment protects NAGAAA’s membership policy from Washington’s public-accommodation law.”
Within weeks after the ruling, a settlement was reached.
Roy Melani, the Commissioner of the NAGAAA said in a statement that the lawsuit “threatened not only the purpose of our organization, but also its future. We fought hard to protect ourselves and our core identity and I am relieved this issue is finally behind us.”
The impetus for the lawsuit was the disqualification of a softball team that included plaintiffs Steven Apilado, LaRon Charles, and Jon Russ from the 2008 GSWS. The plaintiffs’ team, D2, advanced to the final round and was playing in the championship game when the commissioner of the Atlanta League filed a protest under Rule 7.05 of the NAGAAA Softball Code against six players of team D2.
Rule 7.05 states that “[a] maximum of two Heterosexual players are permitted on a GSWS roster.”
After the team was disqualified, the plaintiffs sought an injunction, asking “the court to rule that NAGAAA is a ‘public accommodation’ under Washington’s Law Against Discrimination (WLAD), Wash. Rev. Code § 49.60 et seq., and that NAGAAA unlawfully discriminated against (them) based on their actual or perceived sexual orientation.”
On May 31, 2011, the court dismissed the plaintiffs’ claim seeking to eliminate the NAGAAA’s rule. It also found that NAGAAA is protected by the First Amendment, and that its expressive purpose would be burdened if it were prohibited from limiting its membership. The court found specifically that the association has a right to “emphasize a vision of the gay lifestyle rooted in athleticism, competition and sportsmanship.”
More recently, the court considered the discrimination claim of the plaintiffs, who argued that “the insistence on openly LGBT members is a retroactive pretext for discrimination against players who chose not to identify as such.”
This argument failed. The court wrote that “while the precise nature of sexual identity is a subject on which this court declines to opine, it is safe to say that sexual orientation, unlike race or sex, is generally identifiable by private conduct or public expression. To determine a prospective member’s sexual orientation, NAGAAA could look at their private conduct or their public expression. Given that it was NAGAAA’s alleged examination of the plaintiffs’ private conduct that led to claims for invasion of privacy in this case, it is reasonable that an organization seeking to limit participation to gay athletes would require members to express whether or not they are gay athletes. Therefore, the Court accepts NAGAAA’s statement of its expressive purpose as presented.
“To weigh NAGAAA’s interest in expressive association, the Court must examine evidence of the impact that admitting players who do not meet NAGAAA’s eligibility requirements would have on that expression. See Board of Dirs. of Rotary Int’l v. Rotary Club of Duarte, 481 U.S. 537, 548 (U.S. 1987). As discussed above, the Court has already held that NAGAAA’s protected First Amendment rights would be burdened by forcing them to include an unlimited number of athletes who do not meet their membership rules.
“The Commissioner of NAGAAA submitted a declaration explaining that the desire for exclusivity was born of the fact that many members of the LGBT community come from backgrounds where team sports have been environments of ridicule and humiliation. NAGAAA’s efforts to promote an athletic, competitive, sportsmanlike gay identity, with a unique set of values, in response to a particular need, are protected by the First Amendment. Forced inclusion of straight athletes would distract from and diminish those efforts.”
The next step for the court was to “examine the state interest in enforcing its public-accommodation laws. One disagreement between the parties is over the appropriate scope of relevant state interest: NAGAAA argues that the state has no particular interest in preventing discrimination against straight and closeted softball players, while the plaintiffs argue that the state is interested in eliminating all forms of discrimination, regardless of the particulars.”
The case law, according to the court, favored the defendant’s position that “the state interests should be narrowly defined to a particular form of discrimination. Indeed, if state public-accommodation statutes truly prohibited discrimination against all groups and in any form, then freedom of association would be toothless. The plaintiffs have not shown, and the court cannot find, any reason to believe that the state interest in eliminating NAGAAA’s exclusionary policies outweighs NAGAAA’s associational rights. Accordingly, the First Amendment protects NAGAAA’s membership policy from Washington’s public-accommodation laws.”
Stephen Apilado et al., v. The North American Gay Amateur Athletic Alliance; W.D. Wash.; CASE NO. C10-0682, 2011 U.S. Dist. LEXIS 58297; 5/31/11
Attorneys of Record: (for plaintiffs) Melanie S. Rowen, LEAD ATTORNEY, PRO HAC VICE, NATIONAL CENTER FOR LESBIAN RIGHTS, SAN FRANCISCO, CA; Suzanne J Thomas, LEAD ATTORNEY, Peter Anthony Talevich, K&L GATES LLP (SEATTLE), SEATTLE, WA; Christopher F. Stoll, PRO HAC VICE, NATIONAL CENTER FOR LESBIAN RIGHTS, SAN FRANCISCO, CA. (for defendant) Michael Reiss, Rebecca J. Francis, DAVIS WRIGHT TREMAINE (SEA), SEATTLE, WA; Roger Ashley Leishman, DAVIS WRIGHT TREMAINE LLP, SEATTLE, WA.
