Why NAGAAA is wrong for fighting to exclude ‘non-gays’

Yesterday, U.S. District Judge John Coughenour ruled that the North American Gay Amateur Athletic Alliance (NAGAAA) could limit the number of “non-gay” players allowed on softball teams participating in major tournaments.

I think this is the wrong conclusion from a legal perspective (which I’ll address at the bottom of this post to make it easier for anyone who is not into that sort of thing to avoid it), but more importantly, I think NAGAAA is doing a major disservice to the LGBT community by fighting to keep its “non-gay” exclusion policy.

The case, if you have not heard about it yet, arises from an incident at the 2008 Gay Softball World Series. At the tournament, D2, a team in the A Division (the highest division you of NAGAAA), was challenged for having too many non-gay players.

The interrogation process was the most offensive part of the story. Three players from D2 were brought into a room individually and questioned in front of 25 random people about their sexual histories, whether they were predominantly attracted to men or women, etc.

(You can read a thorough description of the facts of the case in the plaintiff’s complaint, available here, starting on page 7.)

(Although the judge ruled to allow NAGAAA to keep its policy to limit the number of “non-gays,” the case is proceeding to determine if the players have any remedy for the intrusion and subsequent emotional damage from the interrogation.)

I am sure that NAGAAA admits that the interrogation was uncalled for and unprofessional. And I’m assuming they have updated their policies to try to prevent something like this from ever happening again. However, how you can “confirm” someone’s sexual identity without being intrusive is beyond me.

Improving their enforcement process is not enough.

NAGAAA needs to scrap the entire policy for two main reasons: (1) how it categorizes and (2) how it stereotypes.

(1) NAGAAA’s “non-gay” exclusion policy is founded on antiquated views of sexuality and is incredibly offensive.

This is the most important reason. I cannot believe more people are not offended by this. Hell, I cannot believe the entire LGBT/Queer community is not pissed off about this.

I put “non-gay” in quotes in this entire piece to highlight it. The NAGAAA policy interprets this language as a strict binary. You can have as many “gays” as you want on a team, but only two “non-gays.”

“Non-gays” does not only include heterosexuals. It includes bisexuals, pansexuals, those   who are questioning, etc.

When one of the players was being interrogated, a member of the NAGAAA Protest Committee told him, “This is the Gay World Series, not the Bisexual World Series.” (Plaintiff Complaint at page 11.)

That is such an offensive and brainless comment. I am dumbfounded that NAGAAA embraces such an outdated view of sexuality and labels.

So much of the community’s struggle has been to distance society from the need to label people based on their sexuality or to live in these strict binaries of male/female, man/woman, gay/straight.

For this reason alone, the policy needs to be removed.

(2) Straight men will not ruin the culture of the league.

Most the people I have talked to that defend the policy do so on two grounds: (1), they are worried about harassment from straight bullies, and (2) they are worried that teams will “stack” their team with talented straight guys.

Both of these arguments are unfounded and shortsighted.

The first argument goes that if the policy is gone, so many straights will join the league that the culture of the sport no longer feels safe for gay men. (Part of the argument is that the leagues initially formed to create this safe culture and that the leagues shouldn’t have to change.)

Sorry, but this view is incredibly paranoid. Straight men are not going to band together in order to infiltrate a gay softball league so they have fresh targets to bully.

Most players in these leagues find them by invitation from a friend.  Homophobic straight guys will not get that invitation.

Most importantly, the solution to this problem is simple. Do not exclude players because of their sexuality; exclude them if they are homophobic.

Am I missing anything? Wouldn’t that take care of the fears?

Secondly, proponents of the policy cite to the risk to the competitive balance of the sport.

Again, I think this argument lacks any sort of merit. NAGAAA has a pretty extensive rating system for players. You have to get rated before you can join, and if you’re too good for your division, you have to move up a division.

So, if some team wants some amazing straight softball player on their team, eventually they’ll have to move up divisions to retain those players.

If you’re in the A Division (the top division) you are seriously good at softball. If a bunch of straight guys come in and dominate the A division, increase your rating scale, create an A+ division, and put them (and anyone else at that level) in that division.

Again, am I missing something?

Additionally, the policy, as a general matter, is offensive for perpetuating a stereotype that straight men are superior at sports than gay men.

And what if you’re a straight guy, who sucks at softball, who wants to play softball with your gay friends? Tough luck, bud, those two precious “non-gay” spots are reserved for superstar straight athletes.

That whole idea, and the associated stereotyping, pisses me off.

Legal Mumbo Jumbo

Even though I’ve rambled on quite a bit, I said I’d talk about why I think the legal conclusion made by Judge Coughenour is wrong. (And since I wrote a paper about Boy Scouts v Dale, the case that allowed the Boy Scouts to exclude gays that Judge Coughenour relied on, last semester, I probably should chime in.)

Unfortunately, I was unable to find Judge Coughenour’s actual opinion, so I’m basing my thoughts solely on what has been reported.

The Associated Press writes that, “U.S. District Judge John Coughenour ruled Tuesday that the organization has a First Amendment right to limit the number of heterosexual players, much as the Boy Scouts have a constitutional right to exclude gays.’

“It would be difficult for NAGAAA to effectively emphasize a vision of the gay lifestyle rooted in athleticism, competition and sportsmanship if it were prohibited from maintaining a gay identity,” the judge wrote.

In Boy Scouts v. Dale, Chief Justice Rehnquist, writing for the majority of five Justices, concluded that BSA had an official view opposing homosexuality and that its freedom to express that view was significantly affected by forced inclusion of gay members. (And yes, I just copied/pasted that word-for-word from my paper.)

Rehnquist concluded that this official view came from the Boy Scout Law and Oath that men by “morally straight” and “clean.” While that conclusion is suspect, as Justice Stevens expresses in his dissenting opinion, reaching a similar conclusion for NAGAAA—a need to exclude “non-gays” as a means to expressively associate—is even more farfetched.

NAGAAA’s stated mission is to promote “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.”

Do you think the Boy Scouts’ right to exclude gay members would have be upheld if they had “regardless of sexual orientation” in their mission statement? Or if they allowed only 2 gay members per Troop?

The answer is no.  Once an organization officially recognizes that it will not discriminate based on sexual orientation, they no longer can argue that they have a 1st Amendment right to exclude heterosexuals as a means of expressive association.

(Nevermind the fact that NAGAAA’s mission states that it would put a special emphasis on the participation on members of the bisexual and transgender community, yet their policy distinguishes by “gay” and “non-gay.”)

Lastly, Judge Coughenour wrote, “Plaintiffs have failed to argue that there is a compelling state interest in allowing heterosexuals to play gay softball.”

That “compelling state interest” language is critical because it shows that the judge applied a strict scrutiny standard of review for the constitutional issue. The Supreme Court has never said that strict scrutiny applies to discrimination based on sexual orientation. Under a lower standard of review, it’s more likely that NAGAAA’s policy would not survive.

Associated Press, Judge John Coughenour, NAGAAA, North American Gay Amateur Athletic Alliance