Friday, June 3, 2011

I Like My Beer Cold, My T.V. Loud, and My Gay Softball League Participants Sufficiently Homosexual

About a month ago, I wrote about a pending federal lawsuit over the North American Gay Amateur Athletic Alliance's decision to vacate a San Francisco team's second place finish in the Gay Softball World Series because a team competed with too many non-Gay members. A federal district court judge in Seattle has ruled that the Alliance's rule restricting the number of non-Gay players is constitutionally protected under the First Amendment. The Seattle Times reports:
U.S. District Judge John Coughenour found that the North American Gay Amateur Athletic Association, which sponsors the yearly event, can keep its rule. The First Amendment guarantees of freedom of expression and association allow organizations like the softball association to limit membership to individuals with like-minded beliefs in order to promote a broader agenda — in this case, ensuring gay athletes have a safe and accepting community in which to play, he ruled.
However, the judge also ruled that the allegedly insufficiently homosexual players' lawsuit---the three plaintiffs are bisexual---against the Alliance may proceed since the organization may have applied its rule in a discriminatory fashion under Washington state law. In part, the case revolves around whether the Alliance violated Washington state law by failing to include bisexuals within the scope of term "gay." (Apparently, policymakers at the North American Gay Amateur Athletic Alliance share Homer Simpson's views on the appropriate conduct of its  athletes.)

The suit was backed by the National Center for Lesbian Rights in San Francisco, which had framed it as a push for bisexual rights. It contended the rule discriminated against bisexuals by not including them in the definition of "gay."

Coughenour rejected that contention in the broader sense by not issuing an injunction against the rule, but said "treatment of bisexuals remains of central importance to this case" and that the association "could still be liable for its actions" under the Washington Laws Against Discrimination for actions at the 2008 games.
The article notes, however, that the Alliance has since revised its policies to specifically include bisexual and transgendered athletes to participate in its events.

On its face, I think Judge Coughenour has made the right call. The First Amendment's freedom of association should be interpreted broadly. A private organization should be able to establish its own policies for membership or participation in its activities, and, moreover, it is completely reasonable for a organization dedicated to serving the gay community to establish rules and procedures that establish and protect safe spaces for homosexuals. However, organizations may not apply their rules in an arbitrary, capricious, or prejudicial fashion, and the enforcement of a protected rule may still cause harm to an individual if the procedures used to ensure compliance are demeaning or unreasonably intrusive. So, permitting a lawsuit that seeks damages from the Alliance for its conduct, and not for its policies, strikes me as the correct balance.

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