"Reverse" Discrimination in Sports
DeMartini, Anne L., JOPERD--The Journal of Physical Education, Recreation & Dance
With little federal-level legal protection for sexual-orientation discrimination, plaintiffs often seek relief under state laws. This recent case provides an interesting example of "reverse" discrimination in sport, where heterosexual plaintiffs accuse a gay athletic association of violating state antidiscrimination law. The first hearing in the case, decided by the United States District Court, Western District of Washington, clearly outlined the legal standard for determining whether or not an athletic association is a public accommodation and the scope of the "distinctly private" club exemption for the purposes of state antidiscrimination law (Apilado v. N. Am. Gay Amateur Ath. Alliance, 2011). The second hearing in the case answers the question of when an athletic organization's First Amendment interest in expressive association outweighs the state interest in eradicating discrimination (Apilado v. North American Gay Amateur Athletic Alliance, 2011).
Facts of the Case
The North American Gay Amateur Athletic Alliance (NAGAAA) operated the 2008 Gay Softball World Series (GSWS). The plaintiffs' team, D2, was playing in the championship game when the commissioner of an opposing league filed a protest against six players of the D2 team under Rule 7.05 of the NAGAAA Softball Code, which states, "[a] maximum of two heterosexual players are permitted on a GSWS roster."
After 02 lost the championship game, NAGAAA's protest committee conducted a hearing according to the association's rules. The protest committee determined that the six plaintiffs were "non-gay" and, therefore, that D2 was not eligible to compete in the GSWS. The team was disqualified from the tournament, its victories and second-place finish in the tournament were forfeited, and the committee recommended that the plaintiffs be suspended from the association's softball play for one year.
The plaintiffs asked the court to rule that NAGAAA was a "public accommodation" under Washington's Law Against Discrimination (WLAD; Revised Code of Washington [section] 49.60 et seq.), not exempt as a "distinctly private" club, and that NAGAAA had unlawfully discriminated against the plaintiffs based on their actual or perceived sexual orientation. They sought preliminary and permanent injunctive relief against the association's enforcement of the softball code. Defendant NAGAAA first argued that it did not necessarily constitute a public accommodation and should fall under the "distinctly private" club exemption. Additionally, the NAGAAA countered that the association Rule 7.05 was protected under the First Amendment guarantee of the "right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends" (Boy Scouts of Am. v. Dale, 2000, p. 647.)
Because the plaintiffs could not show a likelihood of repeated emotional distress, since the tournament was over, their claim for preliminary injunctive relief was denied. The court found that NA-GAAA was a public accommodation, and was not covered by the "distinctly private" club exemption. However, the court did find that the First Amendment protects its right to exclude those whose membership would negatively affect their expressive activity, granting NAGAAA's motion for partial summary judgment on the plaintiff's WLAD claims.
The WLAD civil rights law protects citizens from discrimination based on race, creed, color, national origin, sex, honorably discharged veteran or military status, sexual orientation, or disability in places of public accommodation. Washington state specifically defines a public accommodation and explicitly outlines an important exemption to the law which excludes "bona fide club, or place of accommodation, which is by its nature distinctly private, including fraternal organizations..." (Revised Code of Washington [section] 49.60.040). …