A federal judge from the Western District of Washington has found that the North American Gay Amateur Athletic Alliance (NAGAAA) has a First Amendment right to limit the number of bisexual or heterosexual players in the Gay Softball World Series (GSWS).
The core of the court’s ruling was that NAGAAA has a right to “emphasize a vision of the gay lifestyle rooted in athleticism, competition and sportsmanship.”
The impetus for the lawsuit was the disqualification of a softball team from the 2008 GSWS, an event organized by the NAGAAA and attended by plaintiffs Steven Apilado, LaRon Charles and Jon Russ. The plaintiffs’ team, D2, advanced to 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.”
In assessing whether the defendants had violated WLAD, the court first had to determine whether NAGAAA is a place of public accommodation.
“While it may seem counterintuitive to call an organization a place, courts in Washington and around the country have expanded the scope of anti-discrimination laws to cover wider areas of public life,” wrote the court. “In Tenino, the Supreme Court of Washington noted with approval the fact that Minnesota had expanded the definition of ‘place of public accommodation’ from fixed locations to mobile sites to business facilities of any kind whose goods and privileges are made available to the public. Tenino Aerie v. Grand Aerie, 148 Wn.2d 224, 59 P.3d 655, 668-669 (Wash. 2002). Accordingly, NAGAAA qualifies as a ‘place’ under Washington’s anti-discrimination law.
The next question before the Court was whether or not NAGAAA is a “public accommodation” or a “distinctly private” club. “There is little room for doubt that NAGAAA qualifies as a public accommodation,” wrote the court.
“Even if NAGAAA appears to be a public accommodation under WLAD, the court’s analysis does not end there. NAGAAA also argues that Rule 7.05 is protected by the First Amendment.”
“In order for NAGAAA to show that its decision to exclude someone from membership is protected by the Constitution, it must show three things: (1) NAGAAA is an expressive association, (2) forced inclusion of unwanted members would affect NAGAAA’s ability to express its viewpoints, and (3) NAGAAA’s interest in expressive association outweighs the state’s interest in eradicating discrimination.”
The court found the defendant’s arguments persuasive.
“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,” it wrote. “Forced inclusion of straight athletes would distract from and diminish those efforts.”
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.
