by Roger Brigham
The cold, wet days that have cursed our early June have been the perfect excuse to stay inside, curl up with some good reading material, and pray for sunnier days to come. Lacking good reading material, I turned to a few thousand pages of legal documents for two upcoming court trials of great import to the LGBT sports world. By comparison, my brief break to see San Francisco Opera's Götterdämmerung was a refreshingly light-hearted romp.
A partial summary judgment issued last week by U.S. District Judge John Coughenour, allowing the Gay Softball World Series rule, which allows a "maximum of two heterosexual players on a GSWS roster," to stand was hailed by supporters of the segregationist policy. Less reported is that the judge also ruled that the North American Gay Amateur Athletic Alliance event falls under public accommodation laws – something the association had contested. The trial, now moved to August 1, will consider the propriety of how NAGAAA enforced its rule and its discriminatory implications.
"I think the court's First Amendment analysis is somewhat of a surprise," said Christopher Stoll, a senior staff attorney at the National Center for Lesbian Rights. "We're very happy with his ruling that NAGAAA is covered by the law against discrimination. The court order does not resolve or dismiss any of the claims now that are moving forward. We're looking forward to having our guys vindicated."
The lawsuit is on behalf of three men of color from the D2 softball team that was disqualified after playing in the championship game of the 2008 GSWS http://www.ebar.com/columns/column.php?sec=sports&id=339). Players John Russ and Steven Apilado and player/coach LaRon Charles said they and a few white players were called in for an interrogation that was personally invasive and upsetting, requiring them to discuss their sexual practices and inclinations. Despite giving the same answers as some of the white players, they were the ones who were ruled "not gay."
"The court finds that NAGAAA is a public accommodation, but that the First Amendment protects their right to exclude those whose membership would negatively impact their expressive activity," Coughenour wrote. "Plaintiffs' allegations about defendant's treatment of bisexuality remain of central importance to this case. And defendant could still be liable for its actions. Whether or not defendant's treatment of plaintiffs at the protest hearing is deserving of First Amendment protection remains to be seen."
NAGAAA had argued it was a "distinctly private club," which would give it exemption from the anti-discrimination laws. But Coughenour wrote that rather than being private, "NAGAAA's mission statement celebrates inclusivity and states that its mission is to promote amateur competition 'for all persons regardless of age, sexual orientation or preference, with special emphasis on the participation of members of the gay, lesbian, bisexual and transgender (GLBT) community.'"
The judge did rule that NAGAAA, like the Boys Scouts of America, is an "expressive organization," but that although deference is given to such a group's view of how its expression would be impaired, "This deference is not absolute. Associations like NAGAAA cannot 'erect a shield against anti-discrimination laws simply by asserting that mere acceptance of a member from a particular group would impair its message.'"
Now, NAGAAA's defense of its policy is that it was created as a response to sports environments that were hostile and dangerous for people perceived as gay. And yet, many other sports organizations were formed for very much the same reason and have thrived quite nicely without similar discriminatory language. Running, track and field, basketball, wrestling, rugby, aquatics ... organizations in a boundless number of disciplines have strong LGBT identity and expression without restricting straight involvement, and many of them come together every four years in the world's biggest participatory multisport event, the Gay Games. In fact, softball is played in every Gay Games with no screening for sexual identity.
NAGAAA's rule also presumes a person is either heterosexual or homosexual. Would that the world were colored with such black and white certainty. The rule does not accommodate bisexuals, intersex individuals or people who are not certain, asexual, or not inclined to label themselves.
And NAGAAA did not claim the players were wearing "Yes on Prop 8" or "Not Adam and Steve" T-shirts. These are players who actively support gay softball in San Francisco, are part of our community and accepting of others. They simply failed to pass the inquisitors' sniff test. Didn't seem gay enough.
Knock the defenders of the NAGAAA policy off their soapbox and the reason for the ruling distills down to one four letter word.
Fear of the unknown. Fear of those who are different. Fear of openness. Fear of being free of labels and stereotypes to hide behind.
Sounds a lot like the homophobia it is supposed to be fighting. So unnecessary, so locked into the past rather than reaching for the future.
On to Cleveland
Interestingly, the participation of straights in LGBT sports at an organizational level is raised in the lawsuit that will play out on the shores of Lake Erie in July. There, Cleveland Synergy Foundation, which in 2009 had won the bid to host Gay Games IX in 2014, is suing the Federation of Gay Games, the Greater Cleveland Sports Foundation, and the city of Cleveland and one of its employees for their alleged roles in the FGG's decision last year to terminate CSF's Gay Games license.
Thousands of pages of documents purported to be copies of trial depositions obtained through public information requests that give conflicting accounts of CSF's fall from grace have been posted on the Internet. As I read them, I had moments of laughter, moments of anger, but mostly a feeling of sadness.
There are repeated mentions of FGG's internal dissatisfaction with the CEO of the 2010 Gay Games as the FGG and CSF were negotiating the final terms of their license agreement and the dynamics of CSF's involvement with Cologne. There are questions about the propriety and motivation of the creation of a profit enterprise simultaneously by the founders of CSF's nonprofit entity. There are reports of arrogance and discourtesy, of people scheming and lobbying to make money, and of an organization that was supposed to be focused on getting ready for the state's biggest sporting event ever too stretched by ancillary projects.
All of which has a dreadful tedium to it and I will wait for the court to sort it out. The items of more emotional resonance are the protests raised by CSF with the organization created to replace it as the host, the Cleveland Special Events Group Corporation, and alleged homophobic language and attitudes exhibited by some of the people who will now be involved in the event.
The objection to CSEG, which involves most of the partners who sat on the CSF council but not the founders of CSF, is that it is not essentially an LGBT group, a requirement for bidding on the Gay Games. The objection to the language and attitudes exhibited is that they are inappropriate always and in conflict with the Gay Games mission.
On the other hand, CSEG does have significant LGBT involvement, and the language and attitudes objected to are some of the very reasons why the FGG voters chose Cleveland in the first place: to march in and change attitudes, to educate by example.
My sadness comes from the fact that I was one of the FGG delegates who voted for Cleveland. I know the impact the Gay Games can have in Cleveland and the Midwest. I believed in the people who presented the bid, I liked them, and I continue to like them. Almost every Gay Games host goes through an internal transition after the bid presentation as different skill sets come to the fore to work on the actual staging of the event, and this seems to be a case where such a needed transition was bungled.
Sad. Looking forward to resolution and sunnier days to come.
Good night, Valhalla.