Softball players sue gay league
by Roger Brigham
A long-standing restriction on the number of straight players allowed on teams in the Gay Softball World Series is being challenged in federal court by three San Francisco players who were thrown out of the 2008 series by the national governing body and their team forced to forfeit its second place finish.
The National Center for Lesbian Rights, whose original appeal to the North American Gay Amateur Athletic Association to have the players and team reinstated had been denied by NAGAAA in October 2008 (See, "Fallout lingers over gay softball ruling," http://ebar.com/columns/column.php?sec=sports&id=206), on Tuesday announced the appeal filed in the United States District Court for the Western District of Washington on behalf of D2 players Steven Apilado, LaRon Charles, and Jon Russ. The plaintiffs are represented through the pro bono services of the law firm K&L Gates.
NAGAAA could not be reached for comment and previously did not respond to repeated inquiries from the Bay Area Reporter regarding its 2008 decision.
Although NAGAAA's mission statement says it promotes "amateur sports competition, particularly softball, 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 community," Rule 7.05 of the NAGAAA code limits teams in the Gay Softball World Series to a maximum two heterosexual players. Created decades ago before many states included sexual orientation in their non-discrimination laws, it was originally written to help ensure gay athletes could congregate in sufficient numbers to play ball. With a few exceptions such as flag football, most major LGBT sports organizations that had similar restrictions have long since dropped them.
In a press release Tuesday, NCLR said Apilado, Charles, and Russ had encountered discrimination, hostility, and suspicion when their team, D2, playing in the championship game of the 2008 series in Kent, Washington, was removed from the game for an impromptu oral inquisition. NCLR said five D2 players were summoned to a protest hearing and forced to answer intrusive questions about his sexual orientation and his private life in front of a room of more than 25 people, most of whom the players did not know. The players were forced to answer whether they were predominantly attracted to men or predominantly attracted to women, without the option of answering that they were attracted to both. NCLR said after each player was questioned, the panel voted on whether he was gay or non-gay. NCLR alleged that when one player said he was attracted to both men and women, a NAGAAA member responded, this is the Gay World Series, not the Bisexual World Series.
"When you play softball, you never expect for anyone to corner you and ask you personal questions about who you are and what you do," Charles said in the statement. "It was emotional for me as a coach to go in there and not only get grilled, but watch my team be put in this situation. This had me angry, had me in tears, contemplating whether I even want to be part of the league anymore after being in it since 1999. The rationale that straight players should be limited on a team because they are better athletes is wrong, and it's insulting to the many strong LGBT athletes of today. A player is a player."
NCLR noted the decision by a predominately white panel to ban the three men of color took it multiple votes to reach its conclusions, including the decision that a white player who had given the same answers as one of the players it had disqualified was gay.
"This case shows that bisexual people are an integral part of the lesbian, gay, bisexual, and transgender community," said Helen Carroll, director of the NCLR Sports Project. "The San Francisco team was truly diverse and welcomed bisexual, gay, and straight players, and they saw each other as not just teammates, but family. We all deserve to be treated with respect no matter what part of the GBT we are. It damages our community to conduct witch hunts and to exclude people from playing in a sports league for not being gay enough. We wouldn't accept this kind of treatment from a non-LGBT sports organization and we shouldn't do it to ourselves."
At the time of the disqualification and subsequent appeal, state human rights officials told the B.A.R. that the prohibition violated the spirit and letter of the law in Washington, the state where the game was played; California, D2's home state; and Wisconsin, the state in which the 2009 series was played.
"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?
"In regard to the city of Kent, there is some question as to what their liability would be for a private club implementing its own eligibility rules," Brenman added. "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."
NCLR staff attorney Melanie Rowen said, "Washington law prohibits discrimination based on sexual orientation in public accommodations. But conducting an inquisition into someone's sexual orientation to exclude them from playing sports in their community is not just discriminatory – it is outrageous."