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Gay softball settles lawsuit. Court upholds straight limit, dismisses discrimination claims.

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Updated: Nov. 28, 2011, 1:15pmPT

The North American Gay Amateur Athletic Alliance has settled a lawsuit brought by the National Center for Lesbian Rights on behalf of three players who were disqualified from the 2008 Gay Softball World Series in Seattle. In the settlement the players have been reinstated and their second-place finish is now fully recognized, while NAGAAA maintains the Constitutional right to limit the number of straight players on a team.

At the 2008 event, NAGAAA limited the number of non-gay players on any team to two; Because these three players claimed to be bisexual, their team, D2, exceeded the non-gay limit and was disqualified after an allegedly disturbing inquisition process. Earlier this year NAGAAA changed its policy to include an unlimited number of LGBT players on any team, with the two-player limit applying strictly to self-identified straight players.

All that was left was for NAGAAA to retroactively reinstate the players and recognize their team's second-place finish in 2008, which the settlement achieves.

“It means a lot to me that NAGAAA is going to recognize our second place finish in 2008,” said LaRon Charles, one of the plaintiffs in the case, in a written statement. “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.”

A request to NCLR to speak with the plaintiffs was denied.

The lawsuit originally had far bigger goals, as NCLR Legal Director Shannon Minter told Outsports previously that he wanted to prohibit gay sports organizations from limiting the number of straight players. However, U.S. District Judge John Coughenour said in a ruling earlier this year that there was no compelling state interest in forcing gay events to allow straight players:

NAGAAA might very well believe that given the history of gay exclusion for sports, the only way to promote competition for all persons, and ensure that gay athletes have the same opportunities as straight athletes, is to create an exclusively gay community with exceptions for a small number of straight players. It is not the role of the courts to scrutinize the content of an organization’s chosen expression.

The issue of limits based on sexual orientation won't go away anytime soon. I had dinner Sunday night with someone who played on a good gay softball team who said flat-out that players claim they are gay or bisexual when they are in fact straight. Let's face it: If a team wants to cheat, there's simply no good way to enforce the rule other than trusting the integrity of the players. This isn't to say that is the case with these D2 players: There is no compelling evidence that the plaintiffs in this case aren't bisexual, as they claim. However, NAGAAA claims the athletes never said they were bisexual until legal proceedings had begun.

NAGAAA commissioner Roy Melani calls the settlement a "complete win" for NAGAAA:

We believe that NAGAAA has the right to define our organization’s mission and to determine for ourselves how best to fulfill that mission. We are pleased that the Court has recognized NAGAAA’s First Amendment rights, and that the parties have been able to resolve their remaining disputes and put this matter to rest.

On the flip side, lifting a restriction all together, like NCLR had sought to do, has pitfalls. The Bingham Cup has no restrictions of straight players, and the Gotham Knights came out of nowhere to win the whole tournament in 2010. Various players allege the Knights recruited a bevy of straight players, some of them semi-pro. If true (Outsports has not been able to confirm the claims), it's hardly in the spirit of these gay events that are largely venues for gay people to hang out together. Still, many gay teams load their rosters with straight players in various sports, so it wouldn't be a big surprise.

According to NCLR spokesperson Erik Olvera, NAGAAA will consider dropping the ban going forward:

NAGAAA also has committed to continue discussing whether to drop the rule altogether, and will be co-sponsoring [a] panel discussion with us at the next Gay Softball World Series.

At the end of the day, the lawsuit was a step forward -- how big I don't know. It got NAGAAA to bring all LGBT people into their fold, which is incredibly important -- no member of the community should be made to feel less-than at these events. It also brought light to the potential pitfalls of how NAGAAA determines who's straight and who's not. On a personal level, it gave closure to a softball team that fought hard to finish second in 2008. And maybe most importantly, 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.

You can read NAGAAA's and NCLR's full press releases below. From NAGAAA:

SEATTLE, Washington — Organizers of the Gay Softball World Series (GSWS) have announced a settlement in the federal lawsuit that had questioned the legality of a rule requiring teams playing in the annual softball tournament for the lesbian, gay, bisexual and transgender community to consist primarily of members of the LGBT community. The decision to settle came after a series of stinging blows to the case filed by the National Center for Lesbian Rights (NCLR) on behalf of three men whose team was disqualified from the 2008 tournament for allegedly skirting the rule.

“We have been vindicated by the judge’s First Amendment rulings,” said Roy Melani, the Commissioner of the North American Gay Amateur Athletic Alliance (NAGAAA), which hosts the GSWS. “This lawsuit threatened not only the purpose of our organization, but also its future. We fought hard to protect ourselves and our core identity and I am relieved this issue is finally behind us.”

NCLR filed the lawsuit in April 2010 in Federal Court after the Washington Human Rights Commission decided to pass on the case. Plaintiffs asserted various discrimination and privacy claims against NAGAAA, and asked the Court to bar NAGAAA from enforcing its rule in any future Gay Softball World Series.

However, a series of pre-trial rulings from U.S. District Court Judge John Coughenour strongly favored the tournament and its First Amendment rights. On May 31, 2011, the judge dismissed plaintiffs’ claim seeking to change NAGAAA’s rule, and found that the First Amendment applies to NAGAAA’s mission. On November 14, 2011, the judge dismissed plaintiffs’ discrimination claims, ruling that “the First Amendment protects NAGAAA’s membership policy from Washington’s public-accommodation law.”

“It’s the Gay Softball World Series,” Melani argues. “It’s important we defend our right to maintain that identity. How else could we send our message that openly LGBT athletes can excel at team sports? We are a thriving and vibrant community. We compete. We socialize. We look after each other.”

Judge Coughenour agreed, finding that “it is reasonable that an organization seeking to limit participation to gay athletes would require members to express whether or not they are gay athletes.”

The three plaintiffs have now identified themselves as bisexual, but they did not do so during 2008 Protest Hearing or in their original complaints. “If all three players had just said they were bisexual at the time, the lawsuit would never have happened,” says Melani. Nevertheless, NAGAAA has clarified its written policies to confirm that bisexual and transgender players are full members of the LGBT community. Plaintiffs’ remaining individual claims, which sought damages for alleged invasion of privacy and emotional distress, were set for trial in December, but the parties have now reached a settlement agreement resolving the lawsuit. As part of the settlement, NAGAAA has penned an open letter on its website (http://www.nagaaasoftball.org) explaining the lawsuit and the settlement terms.

“This is a complete win for us,” Melani said.

From NCLR:

(Seattle, WA, November 28, 2011)—The National Center for Lesbian Rights (NCLR), K&L Gates LLP, and the North American Gay Amateur Athletic Alliance (NAGAAA) have negotiated a settlement in a case brought against NAGAAA by three bisexual softball players whose team was disqualified from competition following a protest hearing at the 2008 Gay Softball World Series in Seattle.

The three plaintiffs had been playing together in the San Francisco Gay Softball League for years. Their team had gone to the Gay Softball World Series before, but had never finished better than fourth place. In 2008, the team made it all the way to the championship game, when they were shocked to learn that their eligibility to play was being challenged based on a NAGAAA rule limiting the number of non-gay players who could play on a World Series team.

The players were called into a conference room, where they 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 were “believed to be heterosexual,” and their team was disqualified from its second place finish. In 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.

The players recognize positive advances made by NAGAAA, which in 2011 changed its rules to be fully inclusive of all bisexual and transgender players. The rule changes permit an unlimited number of bisexual or transgender players to participate on a Gay Softball World Series team.

“It means a lot to me that NAGAAA is going to recognize our second place finish in 2008,” said LaRon Charles, one of the plaintiffs in the case. “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.”

“As a result of this case, NAGAAA has clarified that all bisexual and transgender people are welcome to play at its tournaments as full members of the LGBT community,” said NCLR Legal Director Shannon Minter. “Every LGBT organization should strive to be a safe and affirming space for everyone, including bisexual and transgender people, people of color, and those who are questioning their sexual orientation. NAGAAA’s decision to amend its rules is a welcome step in that direction.”

Added Seattle litigation counsel Suzanne Thomas of K&L Gates: “This case has helped shine a light on the continuing negative effects of pervasive, historic homophobia and discrimination in sports at all levels and the continued need to combat negative perceptions and stereotypes about LGBT athletes.”

Said Russell K. Robinson, Professor of Law at the University of California Berkeley: “Hopefully NAGAAA’s rule changes will help make the league more welcoming of LGBT people of color. A number of studies have shown that men of color are more likely to identify as bisexual as opposed to gay. By explicitly including all bisexual people in its revised definitions, NAGAAA’s rule changes reduce the likelihood that men of color will disproportionately face exclusion from its tournaments.”

In this case, five players on the plaintiffs’ team were questioned by the protest committee under NAGAAA’s former rule. The three plaintiffs, all men of color, were believed by the committee to be heterosexual and subject to NAGAAA’s two-player limit. The committee voted that the two challenged white players were believed to be gay and not subject to the limit.

NCLR, K&L Gates, and NAGAAA also agreed to participate in an ongoing dialogue about making sports at all levels more inclusive of the entire LGBT community. They will co-sponsor a panel discussion at the 2012 Gay Softball World Series in Minneapolis, MN about different ways to create and maintain LGBT inclusive sports organizations, including discussing participation rules based on sexual orientation, and ways to eradicate homophobia and discrimination.

The softball players were represented by NCLR and Thomas of K&L Gates.

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The National Center for Lesbian Rights is a national legal organization committed to advancing the human and civil rights of the lesbian, gay, bisexual, and transgender community through litigation, public policy advocacy, and public education. www.NCLRights.org