After softball appeal denied, legality of restriction in question

by Roger Brigham

EDGE Media Network Contributor

Thursday October 23, 2008

A protest filed by a San Francisco softball team over its disqualification from last August's Gay Softball World Series for having more heterosexual players than rules allow has been turned down by the North American Gay Amateur Athletic Association. The loosely enforced rule predates the sexual orientation anti-discrimination laws that now exist in California, D2's home; Washington, where the 2008 Series was played; and Wisconsin, site of next year's Series and the first state to have included sexual-orientation in its discrimination laws. Those laws call into question not just the need but the legal validity of the not-gay-enough rule.

"I don't think we've encountered this question before," said Marc Brenman, executive director of the Washington State Human Rights Commission. "One quick reality test that is sometimes used to determine the possible magnitude of an issue is to ask how it would be treated if the term "African-Americans" were substituted for the group in question. Would it be acceptable to the public mind for a private group to exclude some people because they were not 'sufficiently' African-American?"

The National Center for Lesbian Rights told the Bay Area Reporter this week that it had received NAGAAA's rejection of the appeal in a brief email late last week. NCLR had filed the appeal on behalf of D2 and its parent league, the San Francisco Gay Softball League.

D2 had advanced through the tournament with just one loss to the Vipers from Los Angeles. After D2 beat the Atlanta Mudcats to advance to the title game. That game was interrupted when the Mudcats filed a protest alleging that D2 had six straight players -- four more than Rule 7.05 of the NAGAAA code allows. The Mudcats later withdrew their protest of one of the players but continued with the other five. The interrupted game was continued, the Vipers won, and then the protested players were interviewed by a protest committee called by Protest Chair John Russell with roughly 25 people present at one time or another. Eventually the disqualification was upheld.

The title game was played in a public park in Kent, Washington. That state's Anderson-Murray Antidiscrimination Law, passed in 2006, prohibits discrimination based on orientation in public facilities.

"In regard to the City of Kent," Brenman said, "there is some question as to what their liability would be for a private club implementing its own eligibility rules. Generally speaking, an entity is not allowed to accomplish through contract or other arrangement what it cannot accomplish itself. The City of Kent, under state law, could not exclude people from benefits and services due to sexual orientation."

NAGAAA has not made any public comment despite two previous requests. The only reference to the matter on the 2008 Series web site is an open letter from the host organization noting that protests were made but those matters are decided only by NAGAAA, not the host.

Among the remedies the appeal sought were a special NAGAAA meeting to suspend enforcement of 7.05, deletion of 7.05 and references to it in the governing documents, discarding definitions of gay and heterosexual, declare that the rulings and findings against D2 and SFGSL were void or invalid, apologies to the D2 players who were interviewed, and reinstatement of D2 in the standings.

Would it be acceptable to the public mind for a private group to exclude some people because they were not 'sufficiently' African-American?

"Obviously we were disappointed that it was denied," Helen Carroll, head of the NCLR's Sports Project, told the B.A.R . "We're still optimistic we can get them to look at this topic in depth again in January and they will look at it a little bit differently."

The NCLR appeal noted the protest hearing was neither recorded nor transcribed, a violation of NAGAAA's code and that no official account of the meeting has ever been made available as the code requires.

Based upon oral accounts of the meeting, the NCLR appeal says that contrary to NAGAAA rules, the protest committee was asked to vote on whether players were "gay" or "non-gay," even though NAGAAA rules do not use or define "non-gay," which could include bisexuals or those without any sexual thoughts at all; committee members repeatedly changed their votes on individual players during rounds of voting; and that finally the committee ruled that two of the five players were gay but three were "non-gay" and therefore D2 was disqualified.

D2's second-place finish was forfeited and the other teams were moved up in the final standings, moving the protesting Mudcats into second place. The "non-gay" players were banned from play for a minimum of one year. The SFGSL was found not to have any procedure in place to determine the sexual orientation of its players, fined SFGSL $100, and referred the matter for further sanctions at the winter meetings to be held in January.

The appeal asserts that Rule 7.05 violates the spirit and letter of multiple state and municipal non-discrimination laws -- laws which did not exist at the time the rule was created, that there is nothing relevant about orientation when it comes to playing softball, and that forcing SFGSL to inquire into the orientation of its players would have caused the league to be in violation of the California Constitution, as well as violate Washington and Wisconsin state laws.

Indeed, section 3.02 of NAGAAA's incorporation charter says the organization's mission includes "the promotion of amateur sports competition, particularly softball, for all persons regardless of age, sexual orientation or purpose."

"What was brought home were disqualifications and penalties, not due to misconduct on the field or in the games," the appeal said, " but based solely on the perceived sexual orientation of several players.

"Several of those who speak of these events do so with great emotion, including sadness and outrage. One protested player said that the hearing made him feel 'disgusting.' Another player felt the hearing was offensive because the Committee asked difficult to understand questions and then 'they would tell you what your sexual orientation was.' Another player could not understand why the Committee would prevent him from continuing to play with his friends on a team that he had played on for many years, based more on perceptions than any actual knowledge, in a vote made in less than five minutes on the basis of a handful of questions."

Roger Brigham, a freelance writer and communications consultant, is the San Francisco Editor of EDGE. He lives in Oakland with his husband, Eduardo.