A national gay athletic league is taking a leaf out of the anti-gay legal playbook of the Boy Scouts of America to defend itself from allegations that it engaged in a witch hunt to “out” non-gay members of a softball team.

A trio of ace softball players made the startling allegations against the North American Gay Amateur Athletic Alliance (NAGAAA) in a lawsuit filed last month which says league officials deemed them insufficiently “gay” to play for San Francisco's D2 team in the 2008 Gay Softball World Series.

The league has a rule limiting teams to two heterosexual players but Steven Apilado, LaRon Charles and Jon Russ, who say they are bisexual, have sued for violations of a Washington law which makes it illegal for a “public accommodation” to discriminate on the basis of sexual orientation.

They are seeking at least $75,000 apiece in damages for, among other things, the emotional distress they suffered while being “interrogated” about their “sexual interests or attractions.” “NAGAAA's agents asked each Plaintiff a series of highly personal and intrusive questions,” the complaint says.

NAGAAA, which has 10,000 members nationwide, has yet to file an answer to the suit. But it has already indicated it will argue it is exempt as a “private organization” from  discrimination law — a defense that the notoriously anti-gay Boy Scouts of America has used to justify excluding homosexuals from its membership.

The league “agrees that if they were a public accommodation, they could not limit players on the basis of sexual orientation,” NAGAAA attorney Beth Allen told Advocate.com. “But they’re a private organization, seeking to provide a forum for gay and lesbian athletes, or those who would like to become athletes, to play ball together in an environment where they don’t face any type of discrimination.”

The issue of the D2 trio's eligibility to play surfaced during the 2008 championship game in Seattle. Play was stopped “on multiple occasions,” the suit says, as a team D2 had beaten earlier in the tournament protested it was in violation of the two-hetero rule.

After the game, which D2 lost, Apilado, Charles and Russ were summoned to a “protest committee” hearing before more than 25 league officials “to determine whether each Plaintiff was 'heterosexual' or 'gay.'” As punishment for breaking the rule, D2 was stripped of its second-place trophy.

In addition to damages, the suit requests reinstatement of the trophy and suspension of the cap on heterosexual players. The plaintiffs are being represented by the National Center for Lesbian Rights.

The distinction between a public accommodation and private organization is one that has bedeviled many courts. In a landmark case, the U.S. Supreme Court ruled that requiring the Boy Scouts to admit a homosexual as a member would violate its First Amendment right to “expressive association.” Dale v. Boy Scouts of America, 530 U.S. 640 (2000).

But in addressing a similar conundrum, the same court said the Jaycees illegally discriminated against women by denying them full voting membership.

“We are persuaded that Minnesota's compelling interest in eradicating discrimination against its female citizens justifies the impact that application of the statute to the Jaycees may have on the male members' associational freedoms," Justice William Brennan wrote in Roberts v. U.S. Jaycees, 468 U.S. 609 (1984).

The difference between the Boy Scouts and Jaycees, said Brennan, is that the Scouts' right to express the view that homosexuality is inconsistent with its values would be violated by forcing it to admit homosexuals, whereas the Jaycees' right to expressive association wasn't substantially burdened by allowing women full voting membership. He noted that despite their inability to vote, women regularly participated in Jaycees programs.

NAGAAA doesn't limit membership strictly to homosexuals so it can hardly argue that heterosexuality is inconsistent with its values. The league's mission statement, in fact, says it welcomes “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 ...”

Apilado, Charles and Russ apparently identified with NAGAAA's values by playing on a gay softball team. Shouldn't that be enough?

By Julie Edgar
5/21/10