by Shaun Knittel -
SGN Associate Editor
The National Center for Lesbian Rights (NCLR), K&L Gates LLP, and the North American Gay Amateur Athletic Alliance (NAGAAA) announced on November 28 that they have negotiated a settlement in a case brought against NAGAAA by three Bisexual softball players whose team was disqualified from competition following a protest hearing at the 2008 Gay Softball World Series in Seattle.
The three plaintiffs had been playing together in the San Francisco Gay Softball League for years. Their team had gone to the Gay Softball World Series before, but had never finished better than fourth place. In 2008, the team made it all the way to the championship game, when they were shocked to learn that their eligibility to play was being challenged based on a NAGAAA rule limiting the number of non-Gay players who could play on a World Series team.
The players were called into a conference room, where they were questioned in front of more than 25 people about their sexual orientations and private lives. The players were forced to answer whether they were 'predominantly' interested in men or women, without being given the option of answering that they were Bisexual. In response to a player's statement that he was attracted to both men and women, a NAGAAA member who was in the room stated, 'this is not a Bisexual world series - this is a Gay world series.' NAGAAA's protest committee voted that the three plaintiffs were 'believed to be heterosexual,' and their team was disqualified from its second-place finish.
In the settlement, NAGAAA recognized that disqualifying the players from the 2008 tournament was not consistent with NAGAAA's intention of being inclusive of Bisexual players. NAGAAA now recognizes the players' team - D2 - as a second-place winner of the 2008 Gay Softball World Series, and will award the team a second-place trophy. In the settlement, NAGAAA also expressed regret at the impact the 2008 protest hearing process had on the players and their team. NAGAAA confirmed that its records will be amended to reflect the players' participation in 2008, including the results of all games played by their team.
The settlement may have ended the case, but the discussion continues. In the end, NAGAAA officials maintain they came out on top - and so do the plaintiffs.
NAGAAA CLAIMS FIRST AMENDMENT
NAGAAA officials, in an open letter from the executive board, said their mission is to serve the LGBT community and to send a message through the annual Gay Softball World Series that athletes can play competitive team sports as openly LGBT individuals. In order to fulfill that mission, NAGAAA officials say, they adopted a rule that the majority of players on teams competing at the annual Gay Softball World Series must be athletes who identify as members of the LGBT community.
'Any individual player can play in the Gay Softball World Series, regardless of sexual orientation or gender identity, but team rosters must comply with various eligibility rules, including rule 7.05 of the NAGAAA Softball Code, which limits the participation of non-LGBT players to only two per team,' NAGAAA officials explained.
The timeline of events are as follows:
In April 2010, the National Center for Lesbian Rights filed a lawsuit in federal court challenging the legality of rule 7.05, and asserting various discrimination and privacy claims against NAGAAA. Plaintiffs asked the Court to bar NAGAAA from enforcing rule 7.05 in any future Gay Softball World Series.
On May 31, 2011, U.S. District Court Judge John Coughenour dismissed plaintiffs' claim seeking to eliminate NAGAAA's rule. The Court also found that NAGAAA is protected by the First Amendment, and that its expressed purpose would be burdened if it were prohibited from limiting its membership.
On November 14, 2011, Judge Coughenour again ruled in favor of NAGAAA, and dismissed plaintiffs' discrimination claims.
The court found that '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,' and ruled that 'the First Amendment protects NAGAAA's membership policy from Washington's public-accommodation law.' Plaintiffs' remaining individual claims, which sought damages for alleged invasion of privacy and emotional distress, were set for trial in December, but the parties have now reached a settlement agreement resolving the lawsuit.
'The three plaintiffs did not identify themselves as Bisexual during the 2008 Protest Hearing, in their appeal to the NAGAAA commissioner, in their complaints to the Washington Human Rights Commission, or in their complaint suing NAGAAA,' officials maintain. 'Nevertheless, all three players have now identified themselves as Bisexual. NAGAAA recognizes that some individuals who were present in the room during the 2008 protest hearing apparently did not have the same understanding of NAGAAA's definitions, as they applied to Bisexual players, that NAGAAA's leadership had.'
As a result of the lawsuit, NAGAAA has been forced to vigorously defend not only its protest procedure, but also its First Amendment right to choose its own mission, without interference from outside groups.
NAGAAA officials say they believe 'it is important to encourage inclusion and diversity.'
'It is one of our core values. It is also important to maintain the unique experience that LGBT players experience at the GSWS as a community of openly LGBT athletes. NAGAAA has determined that the best way to accomplish both of those goals is to welcome the participation of non-LGBT athletes, but to limit their numbers to two per team.'
'We recognize some may question the rule's continuing value, even within our own membership,' concluded NAGAAA officials. 'However, we believe that NAGAAA has the right to define our organization's mission and to determine for ourselves how best to fulfill that mission. We are pleased that the Court has recognized NAGAAA's First Amendment rights, and that the parties have been able to resolve their remaining disputes and put this matter to rest.'
DUAL FORCES OF HOMOPHOBIA
'It means a lot to me that NAGAAA is going to recognize our second-place finish in 2008,' said LaRon Charles, one of the plaintiffs in the case. 'I am happy NAGAAA has also made rule changes to let players like me know they are welcome. I look forward to continuing to play ball with my friends, teammates, and community in NAGAAA's tournaments.'
Suzanne Thomas was lead litigation counsel for the case, and personally devoted nearly 1,000 hours of legal time to it since 2009. Many additional K&L Gates attorneys and staff made significant contributions.
'It has been a pleasure to partner with the lawyers and staff at the National Center for Lesbian Rights to spotlight the need to get rid of discrimination against the entire LGBT community,' Thomas told Seattle Gay News. 'Together, we drove the case to be fully prepared for trial, which led to an ultimate fantastic settlement that both meets our clients' goals and promotes the broader goal of eliminating discrimination.'
'The case, and its settlement terms, is not just a major vindication for our players - it's also an important step forward in making LGBT organizations more inclusive and welcoming for all members of our community, including all Bisexual players,' she said.
According to Thomas, the lawsuit exposed negative stereotypes and perceptions about whether LGBT athletes are less able than straight athletes, and showed how exclusionary rules like NAGAAA's can have a worse impact on men of color than on Caucasian athletes.
'In this case, five men - two Caucasian and three of color - were protested against for allegedly not being Gay enough, although no one has ever been able to explain why those particular men were alleged to be heterosexual,' she explained. 'They were playing competitive ball, just like the other A Division athletes. Only the men of color were deemed to be not Gay enough and excluded, which suggests racial stereotyping as well as sexual orientation discrimination.'
'The litigation also put an international spotlight on the historic and continued discrimination against LGBT athletes from the time kids are chosen for teams on the playground through professional sports, and the destructive nature of discrimination against anyone,' said Thomas. 'Russell K. Robinson, professor of law at the University of California Berkeley, wrote an expert report for this case which showed that Bisexuals and people of color tend to be relegated to the margins of LGBT communities - Bisexuals facing stigma from both Gay and heterosexual communities, LGBT people of color facing the 'dual forces' of homophobia coupled with exclusion from white LGBT spaces.'
It is also notable that the lawsuit was brought by the NCLR and LGBT lawyers against an LGBT organization.
'I strongly commend the NCLR for taking the important stance that all discrimination is wrong, whether from inside or outside the LGBT community,' Thomas said.
'This was a phenomenal victory for our clients,' she continued. 'More than anything, they are thrilled that they are being awarded the trophy that they worked so hard to win, and they will be restored to NAGAAA's records as winners. We have also dispelled any notion that these players were somehow 'ringers' or cheaters, and in doing so, we exposed negative stereotypes and perceptions about LGBT athletes, even within the LGBT community. Our guys are very pleased that all LGBT athletes will be welcome by NAGAAA in the future.'
EMERALD CITY SOFTBALL ASSOCIATION RESPONDS
The incidents involved in this lawsuit took place when Seattle hosted the 2008 Gay Softball World Series (GSWS). Even though the GSWS took place in Seattle, the tournament was run entirely by NAGAAA, which includes establishment of all rules. Therefore, this lawsuit was filed against NAGAAA. The Seattle league, Emerald City Softball Association (ECSA), was not involved in the lawsuit at all.
'Our local league [ECSA] does not have any restrictions on players related to sexual orientation,' Frank Pichinini, ECSA commissioner, told Seattle Gay News. 'We have not experienced any adverse affects by not placing restrictions in regards to sexual orientation.'
Pichinini said several of the non-LGBT players on ECSA teams are friends or family members of the LGBT players, and some non-LGBT players play on ECSA teams because they 'like the environment our league provides.'
'We do however, honor NAGAAA's restriction related to limiting non-LGBT players at the Gay Softball World Series,' he said. 'We do not allow more than two straight players on the roster of any of our teams going to the Gay Softball World Series. If a team has more than two straight players on their roster during the regular season, the team knows upfront that if they qualify for the World Series, they can only include two of them on their World Series roster.'
'Personally, I have been a member of ECSA for 20 years and since the first year I played in the league, I was never supportive of this restriction - it just felt like reverse discrimination to me,' concluded Pichinini. 'As commissioner of ECSA, I know there are others that feel the same way I do, but I also know there are members that support the restriction being in place. We, as a NAGAAA-member city, look forward to continuing to explore with NAGAAA and other member cities, the value of such a restriction. Realistically, sometime in the future I could see the restriction being removed.'
Floyd Lovelady, who currently coaches the C-Division SIN and plays and manages the B-Division Dirty Dawgs, has been a member of the ECSA for 11 years. Before playing in Seattle, he played in Los Angeles. 'I've attended about nine Gay Softball World Series,' he told Seattle Gay News. 'In the past 14 years I have seen both the good and the bad. I've been to World Series where it's obvious that teams were stacking their team with straight players. I understand that it is/was the intention of NAGAAA to provide a place where Gay athletes can feel safe on the field, away from the hate or name-calling you might find in other hetero leagues.'
Lovelady says he understands why NAGAAA has the rule is in place, 'but I ask myself, 'If it's equality that we want, then why do we still have this rule?'
'My Gay team has gone to several straight tournaments and beat teams with all straight players,' he said. 'We've had players from teams come up to us afterwards and congratulate us and tell us that we've changed their mind on what they thought Gays were like. We've also had some mean and ugly things said to us, and that made beating them even more special.'
'I don't think that being straight makes you any better of a ball player than being Bisexual or Gay,' Lovelady stated. 'On my Dirty Dawg team in the past, we've had three or four straight players. One guy's dad was Gay, one guy's best friend was Gay, one guy just liked us all and we liked him and his family, and one guy we all thought might be Gay or Bi but wasn't ready.'
'But they were all Gay friendly, and that's my point,' he continued. 'I don't care if you're Gay, Bi, or straight out there, as long as you treat each other with respect. What sucked for us is at the end of the season we could only choose two straight guys to go with us because of the NAGAAA rule, which isn't a rule in the ECSA. So you gotta tell two of your teammates who got you to the Series that they can't go because they like women.'
Lovelady says it is his hope that NAGAAA officials open up the 80/20 rule to at least 60/40. 'Just make it so that your team's predominantly Gay,' he said. 'As far as Bi, I've heard and read the arguments, and I just don't agree with them. I don't believe that if you are playing in the Gay Softball World Series you should be ashamed or embarrassed to speak about your sexuality.'
Share on Facebook
Share on Delicious
Share on StumbleUpon!