A settlement reached this week in a federal lawsuit over disqualification of a San Francisco team from the 2008 Gay Softball World Series leaves a good deal of soul-searching on the table.
"I think it's a step in the right direction," said Vincent Fuqua, commissioner of the San Francisco Gay Softball League. "More work needs to be done but it's definitely heading in the right direction."
As the Bay Area Reporter reported in a blog post November 28, the National Center for Lesbian Rights announced Monday that a lawsuit resulting from the disqualification of the D2 softball team from the championship game in Kent, Washington in 2008 had been settled with the North American Gay Amateur Athletic Alliance, with NAGAAA agreeing to reinstate the team's second place finish and become more inclusive of bisexual players. The plaintiffs had also been seeking a total of $225,000; NCLR confirmed that money was included in the settlement but said the amount was confidential.
D2 was trailing the Los Angeles Vipers in the championship game of the 2008 series when the game was stopped because of a challenge made by another team D2 had already beaten that D2 was in violation of NAGAAA's Rule 7.05, which restricts teams in the series to a maximum of two heterosexual players.
According to NCLR, the players "were questioned in front of more than 25 people, most of them strangers, 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 (LaRon Charles, Steven Apilado and Jon Russ) were 'believed to be heterosexual,' and their team was disqualified from its second-place finish."
After NAGAAA denied their appeals, the three players filed their lawsuit in federal court in Seattle last year with the representation of NCLR and the law firm K and L Gates LLP. A mediation effort failed to resolve the suit. In June, U.S. District Judge John Coughenour issued a partial summary judgment that said NAGAAA was an "expressive agency" that had the "right to exclude those whose membership would negatively impact their expressive activity."
Had the suit gone forward, NCLR officials told the Bay Area Reporter, it would have challenged whether that meant that NAGAAA or any other sports organization had a constitutional right to discriminate merely on the basis of a person's orientation.
"We certainly do feel nobody should be able to do that," said Helen Carroll, director of NCLR's Sports Project. "We hold that position very strongly."
In its first report on this week's settlement and the judge's earlier summary judgment, Outsports wrote: "the lawsuit's defeat last spring affirmed a gay-sports league's ability to associate with whom they choose. Both NAGAAA and NCLR got some of what they wanted; and the community has maintained the constitutional right of association. These are all good things."
But the court ruling should not be mistaken as a finding that LGBT groups can ban straights simply because they are straight. Gay sports aren't about being gay: they are about being accepting of yourself and others and expressing yourself through sports. If you want to wear a shirt that says "God hates gays" and you call your opponents "fags," you're not likely to be welcome. Understood. But if you're Hudson Taylor or Ben Cohen then please, step up to the plate.
NCLR said that as part of 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."
"It means a lot to me that NAGAAA is going to recognize our second-place finish in 2008," Charles said. "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."
In addition, NCLR said it would continue a dialogue with NAGAAA about its rules and how to be more inclusive, and would co-sponsor with K and L Gates a panel discussion at the 2012 Gay Softball World Series in Minneapolis about different ways to create and sustain inclusiveness and fight homophobic discrimination.
"We were happy to settle the case," Carroll said. "Our players feel good about being reinstated and having NAGAAA saying they shouldn't have been treated that way. That was important for the players we were representing.
"The other big positive is that we were able to start some conversations about bisexual people in sport. It's a really different experience for them, and I think this is the first time that conversation has really taken place. I also think it began a conversation for us in sports leagues on the different experience for people of color."
The role of race was an issue in the softball lawsuit. The three players who were ruled "not gay" are men of color; their teammates who were ruled "gay" with similar or identical answers are Caucasian. Fuqua told the B.A.R. that NAGAAA needs to recognize changing and different attitudes about sexual labels that do not fit neatly into a universal gay/non-gay binary model.
"Speaking as an African American, in general a lot of us tend to identify as bisexual rather than as gay because it offers a better comfort level," Fuqua said. "I think in [the gay] community people think you have to be one way or the other, and that's not really the way it works. A lot of bisexuals have always existed in the gay community."
Fuqua said he believes NAGAAA will benefit by becoming more inclusive.
"I have a sense we will see more men of color involved in NAGAAA softball than they have before," he said. "And what about the individuals who do not want to come out yet? They need to feel safe about not being questioned about orientation when they're not really comfortable yet to talk about it."
NAGAAA is one of the very few LGBT sports organizations to restrict heterosexual participation. The vast majority of LGBT sports groups have found more robust, sustainable membership through non-restrictive membership policies and embrace participation of straights as a means to reach out to the mainstream and change perceptions. Membership restrictions such as Rule 7.05 are remnants of an older era predating advances in non-discrimination laws that run contrary to the LGBT community's demands for equal access, equal rights, and mainstream acceptance.
"We don't like to be discriminated against, but then we do it to other people?" Fuqua said. "The new generation that's coming up doesn't want to be labeled one way or another. We're going to have to learn how to adjust our thinking. Things are not the same."
The invasive interrogation by the 2008 panel was one of the points of contention in the lawsuit, and Chris Stoll, senior staff attorney at NCLR, said it appeared such interrogations are now a thing of the past.
"NAGAAA has made it clear they are going to rely on self-identification," Stoll said. "What happened to these guys showed how this type of process can lead to irrational stereotypes coming into play. One problem with this type of process is there are no clear guidelines. There is no transparency in the process because it was a secret ballot. There was no real review of the decision. When you have that kind of unaccountable process with no clear rules, you can have irrational beliefs come into the decision."