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Culhane: Gay Sports Teams and "Expressive Association"

Many people have asked me this question:

Should a gay softball team be able to restrict the number of straight players on the squad?

The subject has been in the news recently, and not just in the “gay news.” Last week, the New York Times picked up the story of a San Francisco softball team that had been disqualified from the Gay Softball World Series when it was determined that there were more than the maximum two “heterosexual” members on the team.  Three members of the second-place team were deemed ineligible, and they’ve sued the North American Gay Amateur Athletic Association (“NAGAAA”), which sponsors the event.

The story raises a host of interesting and inflammatory legal and social issues, and, from what I can tell, most folks are pretty unsympathetic to the league that disqualified the team. But the story is more complicated it seems (and more than has been reported in some usually reliable places).

First, the legal issues. Judge Coughenour ruled that the NAGAAA has the right to set this “three straights you’re out” rule. And his rationale for doing so led me to say: “Touche!”

In Boy Scouts of America v. Dale, the U.S. Supreme Court ruled that the Scouts had a First Amendment right to exclude James Dale from a leadership role. Even though the local anti-discrimination law (of New Jersey) covered the Boy Scouts as a “place” of public accommodations, that law was deemed overwhelmed by the organization’s right to “expressive association.”  The right to convey a message by picking whom you’ll associate with was thought, by a bare majority of the Court, to justify excluding gays in order to promote the Scout’s murky message about honor and, I don’t know, anti-gayness.

At the time, I criticized the ruling as giving too much deference to a message that the Scouts hadn’t even really articulated until they tried to boot Dale. But the case remains good law, so what’s sauce for the Scouts is surely sauce for the NAGAAA:  If the Scouts can bar gays, then surely a gay softball league should be able to bar straights to further its own message. Right?

And if anything, the pervasive history of LGBT discrimination – particularly acute in sports – should make the need for a gay-positive image more compelling than whatever rationale the Scouts were using as a cover for their discrimination.

But what is the message that NAGAAA is trying to convey, exactly? That members of the LGBT community need a dedicated (safe) space to compete? That, in defiance of the stereotypes, we can do just as well (better?) than straight-identified teams? (This excellent article explores these possible messages, and the case, in clear detail.)

Nothing so ambitious, it turns out. The mission statement of the NAGAAA is pretty general fare: 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 (GLBT) community.”

That “special emphasis,” the court effectively held, could be furthered by the “three straights, you’re out” rule.

The case isn’t over. The plaintiffs are claiming that they were ridiculed and humiliated at a hearing to determine their sexual orientation, and the judge has declined to rule on these claims before trial. Not every action in defense of a constitutionally valid rule is justified, and the plaintiffs might be able to show that the league’s actions were nasty and intrusive enough to support an action for damages.

I have mixed feelings about this idea of group identity as justifying exclusion . I thought that the Dale decision did real harm to boys – straight and gay alike – who might have benefited from a good gay role model (having met Dale, my sense is that he had been a great one). And here, I’m sympathetic to the view that allowing straight men and women into these competitions will lead to good things for us and for them. I’m mostly an assimilationist by nature, if not politically.

Yet I hesitate. When it comes to straight men and women in sports leagues that identify as for LGBT athletes, I speak from some experience. And from that perspective, I’m skeptical.

For the past seventeen years or so, I’ve been swimming for the Philadelphia FINS. Look at the website, and you’ll see that the team is quite LGBT-identified. When I was using the team as an important part of my coming out process, it mattered to me that virtually everyone else on it had gone through something universally similar, however different the stories were in detail.

I even timed the “declaration” to my parents to take place shortly before a scheduled workout, so that I could flee for both exercise and moral support if things didn’t go well. (They didn’t, but that’s a lifetime ago in our relationship.)

And the swim meets! Even more gay men (lesbians, not so many) than at…a “regular” swim meet! But unlike at other meets, everyone was out and comfortable. So comfortable, in fact, that the highlight of the meet was an event called The Pink Flamingo Relay. As you might guess from the fact that it’s based on a John Waters movie, this is a purposely tacky, irreverent burlesque. Just watch one for a few minutes. What else are you doing?

http://www.youtube.com/watch?v=EBEXsY60ABY

But the Pink Flamingo is fading. Fewer and fewer teams have been participating. I’m not suggesting that this is happening because there are more straight men and women on the teams – including the FINS – now. But the two shifts are part of the same phenomenon: As “the gay” becomes more mainstream, the felt need to define ourselves in opposition to a repressive culture fades. I’m delighted to have the straights on our team, and, to be honest, no one else seems to have a problem with it, either. Soon, the gay meets will really feel like another other meet. (The pain of swimming the 400 yard individual medley doesn’t vary, in any case.)

Yet…Oklahoma City isn’t Philadelphia, and Topeka isn’t San Francisco. In some places, and for some sports, it remains important for the LGBT community to send powerful messages, and to create safe spaces. If the NAGAAA thinks it needs to limit straight participation for a while longer in order for those goals to be achieved, maybe we shouldn’t second-guess them. (And they’ve now changed their rules to prevent a re-run of the Star Chamber approach – a self-declaration of sexual orientation will now suffice.)

Or maybe we should apply another litmus test: Teams can limit straight participation until at least two professional athletes from each of the major team sports – baseball, hockey, basketball and football – come out. While they’re still playing.

How long do you think that will take?

John Culhane writes and speaks on many different issues: LGBT rights; compensation of disaster victims; and the relationship between law, policy and public health.
  1. showler
    July 8th, 2011 at 09:51 | #1

    Maybe someone can clarify, but isn’t one of the problems with this case that the men identified as bisexual and the league ruled that they weren’t “gay enough” to count as non-heterosexual?

  2. July 8th, 2011 at 10:34 | #2

    While I understand why this group feels the need to exclude people, they are only causing extreme harm in the end. My guess is this board, is made up of people from the last generation of gays. while they may have experience, they also are incredibly paranoid and distrusting of anyone that isn’t Totally gay. Sadly the last generation of gays are becoming dinosaurs in their own cause. They still think this is 1960, when gays were rounded up and thrown in jails or psych wards. That all straights are the devil and could never possibly support gay rights or gay people. While this need for a gay only group may have been needed 10 years ago, it’s now acting as a glaring signal, telling everyone that Gays and straights can never coexist, that even bi’s are not true members of our people. This pompous arcain rhetoric needs to be phased out now. The best possible thing gays could do is to be open and welcoming to the young generation of straights, bis, trans,and so on. remember these people have the same power to vote as everyone else. And by casting them out of your “club” because they aren’t like you, makes anyone apart of that club no better then the countless straights who have caused gays harm. groups divide.

  3. drpatrick
    July 8th, 2011 at 11:36 | #3

    The boy scouts case is entirely relevant. It was equally odious. Discrimination in any form is unacceptable, except when safety is an issue (such as a GSA limiting admission to the group to those willing to be screened first for their tolerance. Creating a safe space should be supreme). HOWEVER, the law of the land is set by the precedent of the Boy Scouts case, so the sports league is fine to discriminate. I think we all long for the day this is no longer necessary. I also think this group limits it’s reach by having such rules in place, just as the BS do.

  4. July 8th, 2011 at 13:52 | #4

    John gave a great legal analysis, as always. From a social perspective, however, I’d ask that people show NAGAAA a little respect–maybe another way to put it is give them the benefit of doubt. This organization has been around since the ’70s, and it’s done a remarkable job of balancing the need for safe space for gay guys who got harassed in locker rooms and picked last for every sports team, all the way up to semi-professional baseball players (this is no exaggeration…I knew one of these guys). The rule is in place for good reasons, and it comes from decades of experience. As someone who has participated in their leagues and tournaments, it’s particularly galling when a team undercuts the priority of providing space for gay folks to develop and enjoy athletic skills all in order to win at all costs…and lie while they do it. This rule is meant to try to prevent that from happening.

    …again, whether or not it’s completely legally Kosher or should be, that’s more John’s turf. But NAGAAA isn’t crazy or harsh or anti-straight.

    >Discrimination in any form is unacceptable…

    Bull! Complete and utter bull!

    Quit trying to take the complexity out of life. It’s one of the main things that makes it so deliciously wonderful.

    Example: I want to throw a pool party. I want all bears and bear admirers there only. I invite only those people. I have thereby “discriminated” against smooth hairless twinks and women.

    No one in their right mind would say that I am “wrong” for inviting only those people I want to invite to a party in my own home. That’s part of what is meant by “freedom of association.” I have the right to hang around with the people I want to hang around with. Discrimination, in this instance, is considered good by society.

    What these anti-discrimination laws are trying to do, as best I understand them (help me out, John), is they are trying to determine when my right to freely associate with whom I want creates an unreasonable barrier to others’ ability to freely work and live and participate in society.

    The best early example I can think of is when non-Caucasian folks and women complained that “(white)men’s only” clubs were important places where business networking occurred. Therefore, in order to reasonably get ahead in business, these clubs needed to admit non-white people and women, so they could reasonably conduct their business the way everyone else can. Maybe another way to put it is that the “private party” crossed a line into a “public accommodation.”

    As another example, it would be very hard for a Tiger Woods to compete at the Master’s tournament if the golf course still did not admit non-white people. Their right to free association was unreasonably hampering Tiger’s career opportunities.

    There is a way around all this. Note that the Bohemian Club in the Bay Area bans all talk of business so that it can continue to be a legal “boys only” club. (For a funny take on this organization as juxtaposed with women’s festivals, see Armistead Maupin’s “Significant Others.”)

  5. July 8th, 2011 at 14:20 | #5

    >While I understand why this group feels the need to exclude people, they are only causing extreme harm in the end.

    I think the burden is on you to demonstrate harm. They’ve had this rule (or some semblance of it) for 30+ years. Where is the harm?

    Also, for gay individuals and teams who want to participate in mixed/straight leagues, they are free to do so.

  6. July 8th, 2011 at 14:28 | #6

    >Maybe someone can clarify, but isn’t one of the problems with this case that the men identified as bisexual and the league ruled that they weren’t “gay enough” to count as non-heterosexual?

    I’d have to read news reports again, but I think that this is a case where the teams are supposed to police themselves. I would imagine that they sign a piece of paper that says that the team they are entering into the tournament adheres to the rules.

    A case like this only happens when someone issues a complaint and then the league investigates. Note also that this didn’t happen at just any garden variety tournament, and it didn’t happen to just any of the teams. It happened at the Gay World Series, where the stakes (trophies and bragging rights) are very high, and it happened only to a team that finished in the top 3.

    As best I recall the news reports, the players under question gave conflicting answers, which led the investigators not to believe their attempts to say “I’m bi!” This was not a case where the league was trying to discriminate against bi people…it was a case where one of the players was revealed to be married to a woman, and the league determined that his statement of “I’m bi!” only after that fact to be a lie in an attempt to cover up his exposed lie.

    I’m not saying that the league was correct in its judgment. (The guy might actually be bi.) I have a sense that the team was withholding information and then changing their story…the league decided that too many “games” were being played, so it disqualified the team.

  7. July 8th, 2011 at 14:32 | #7

    John did an excellent job bringing all aspects of this topic into light. I agree that as long as there are legal protections for the Boy Scouts to discriminate against gays then the same rules should apply for gay sports teams. With that said, I don’t believe there should be protections for such discrimination and we should be fighting for those rules to change instead of for them to apply to us as well. Maybe it’s a good thing we are being equally legally protected in our right to discriminate for the time being but perhaps we shouldn’t exercise that right.
    I, for one, know I would be outraged if we were also barred from professional athletic organizations (and we’re not). It is high past time some gay pro athletes came out but let’s not set a precedent for them to be legally banned before they even do.
    Anyone willing to join a gay sports team, whether gay or straight, it’s safe to assume is gay friendly. So why not let our leagues get better and better with all gay AND gay friendly players and perhaps someday exceed the existing pro teams in popularity and performance or compete against them and break the barrier for gays in pro athletics through an “if you can’t join ’em, beat em!!” approach.

  8. July 8th, 2011 at 14:52 | #8

    Whether one is LGBT, black, asian, white, STRAIGHT M/F teams all over the world need not discriminate or self segregate. Men and women are equalls right? Why aren’t we intigrating teams? Are we so scared of progress?What do we need all female colleges for anymore? What do we need exclusively black colleges and churches for anymore? Why is integration so hard for people? When will we stop being fascinated when a female, black, gay, asian, wtvr, man does well at a sport dominated by straight caucasian men like golf hockey or winter sports? Git r done already ya’ll!!!

  9. July 8th, 2011 at 15:24 | #9

    @Gerry Fisher: The harm comes from the fact that it is a self defeating policy. gays want to be accepted but also want to have special status and through that, isolation from all the homophobic straights. you can’t have both. you either are a totally separate sect of society with your own special rules, or your apart of the society as a whole and share the same rights and laws as everyone else. Now if a group consisted ENTIRELY of say gay men, then that is fine. we have health clubs for women only, spas for men only, Ect. But that is because they are strictly for that group only, No exceptions. This baseball team ALLOWS a few straights to join, so the whole basis of “this is a gay only team” is pure bull. not to mention the fact that most gays treat bi men like scum, the same way that straights treated gays not to long ago, but i digress. You can’t mesh acceptance , tolerance, and exclusivity into one, it’s a sham. It’s no different then having a drinking fountain with a sign that says (whites only, but some blacks can use it, but not to many or we’ll have to change the policy back to whites only, untill someone complains and we go back to the previous policy). It’s a joke. and yes the NAGAAA has done good things, but like all bodies of power, It must change with the times and frankly it’s rapidly become stagnant. People will always hate gays, just like people hate blacks, whites, women, and birds that crap on cars. it’s a fact of life, we won’t win that war, move on. And sheltering people in isolating clubs or groups or klans is useful at first, but just like a fallout shelter used during nuclear war, you eventually have to venture outside and go on with life, otherwise the people resort to cannibalism and worshiping the odd cockroach that scurries inside. The boy scouts are a perfect example, when formed originally they were true to there purpose, now they have been isolated so long unchallenged they created their own dogma and exclude and judge just like any other cult. ,

  10. Sporty_g
    July 8th, 2011 at 16:07 | #10

    Since the “Boy Scouts” ruling by the SCOTUS, I believe that it should be legal for there to be a GLBT team sports league. The problem I have with the NAGAAA is that they were not specific or exclusive enough in their original statements and chartering of the league. Setting a hard quota would have been better than leaving it an open, self-policing activity for each club.
    Sorry, the NAGAAA should loose this one…and it is none of the league’s business as to the sexual proclivities and specifics of their members sex lives. Very inappropriate….

    This is quoted directly from theironline flyer located at http://www.nagaaasoftball.org/docs/brochure.pdf

    I capitalized the important part…..for emphasis.

    “Created in 1977, the North American Gay
    Amateur Athletic Alliance (NAGAAA) is
    a 501c(3) organization that 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 (GLBT) community by
    planning, promoting and carrying out
    amateur sports competition.”

  11. July 8th, 2011 at 19:37 | #11

    The Boy Scouts received legal permission from the Supreme Court to deny gays access, and we screamed about how wrong it is. (And it IS.) So why are we now saying, well, if it’s okay for the Boy Scouts to have these policies, it’s okay for NAGAAA to have them too? You’re either discriminating on the basis of sexual orientation or you’re not. It works both ways.

    I would like us to be better than that. If we want to live in a world where there’s no discrimination, we can start with us.

    I’ve been on an LGBT swim team, and I now play in an LGBT band and I’m a leader of our LGBT employee organization at work. These groups have a few straight ally participants, and we love ’em! It is as potentially uncomfortable for them to be part of a primarily gay group is it is for us sometimes to be part of a primarily straight group. I appreciate that they are willing to transcend that.

    Nobody who is homophobic is going to want to join these groups. These types of groups are always going to have a “special emphasis” on members of the LGBT community. As such, they remain a “safe space” for LGBTs who need that, or just enjoy being in our element.

    It’s just messy anyway. Are we really going to ask for proof that someone is gay? If they fooled around with their roommate one night when they were drunk in college, does that qualify? Why is having two straights on a team okay, but three is not? Where do you draw the line? I don’t foresee a wave of all-straight teams crashing the gay leagues.

    No discrimination. Let’s welcome our supportive straight allies with open arms.

  12. randy
    July 8th, 2011 at 19:38 | #12

    What is “posting comments too quickly”? I don’t think a machine is competent to judge that.

  13. Angel
    July 9th, 2011 at 04:02 | #13

    The link to the Advocate’s article says these men are bisexual. If these men are bisexual doesn’t that count for the B in LGBT? Even if NAGAAA has the right to limit heterosexual players, that doesn’t seem like it would apply in this situation.

    If you go to http://www.nagaaasoftball.org and look at their “The Instruments of Governance” document you’ll find two things:

    Under Definitions:
    “1.18 Heterosexual – (also referred to as straight, non-GLBT, non-LGBT or non-gay) means not gay, lesbian,
    bisexual, or transgender.”

    And under Player Eligibility:
    “7.05 Heterosexual players – A maximum of two Heterosexual players are permitted on a GSWS roster.”

    Hmm… interesting. I’m happy with what the Judge has to say in the last paragraph at the Advocate:
    http://www.advocate.com/News/Daily_News/2011/06/03/Judge_Gay_Softball_League_Can_Limit_Straight_Players/

  14. SteveHansen
    July 9th, 2011 at 04:57 | #14

    “What’s good for the goose, is good for the gander.”

    When the Boy Scouts, and other anti-gay organizations, decide to voluntarily open their membership to gay people, then gay organizations should open their membership to straight people.

  15. July 10th, 2011 at 00:12 | #15

    I think we should allow straights into our leagues, can’t really hurt as long as they’re on our side, and if their in a gay league, I think theres a pretty good chance

  16. July 10th, 2011 at 13:09 | #16

    For years dominance in some gay sporting events were held by 1 or 2 teams, say like mens softball and the LA StrayCats. Of course other gay teams would love to have more str8 players or even 1, but take for instance, the team that has all gay players, playing in a gay tournament..why not just allow a str8 team to come in and join in the festivities with a few gay players or not. First off, would a str8 team even be invited to play in the tourney? Will the queens who want to load their teams up with str8’s automatically win? NO! But the same greediness that has beem invoked into our society now, is also part of gay society….we all want to be winners, and for some gay athletes who have never had a chance to win in str8 sports, they will do anything to win in gay sports. Unfortunately, taking the sportsmanship out of sports back in the 80’s has now left us with doing whatever it take to win now. If gay teams want to compete with str8 teams and not have any conflicts….JOIN A STR8 LEAGUE! otherwise follow the guidelines, for it surely is not all about you…all the time.

  17. July 10th, 2011 at 21:17 | #17

    Here’s the thing: As a proponent of equality, a contributor to the Human Rights Campaign, a lesbian and the mother of a trans-girl teenager still in high school, I can see the benefit of ALLIES in every situation.

    Not everyone is gay. Not everyone is out and proud. I get that, and I look forward to a day when it won’t matter to anyone one way or the other. How are we going to get to that point, however, if we segregate ourselves in order to maintain some illusion of a comfort level?

    Certainly, until equality is the norm, provide opportunities for GLBT sports clubs, but limiting the number of straights allowed to participate is like limiting the number of a Allies we really want to have. I say “no” to token straights and “yes” to a community that loves and accepts everyone.

  18. July 10th, 2011 at 21:20 | #18

    Oh, I forgot to mention that when I first saw the headline I thought, “What? are they trying to say that teams with more straight members are somehow more athletically inclined?” I was truly offended.

  19. July 10th, 2011 at 21:24 | #19

    Some of the comments I’m reading are missing the point. The “not gay enough” players aren’t suing to be admitted. They WERE admitted and the entire team was disqualified. They were bi, from what i understand, and not straight, but even if they were, there should not be a limit. It’s discriminatory.

  20. teachermahn
    July 21st, 2011 at 12:14 | #20

    look, if you are gay, bi, lez, trans and you do not want to be out then don’t join an LGBT sports league. simple. The 3 straight rule should remain.

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