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August 26, 2009

D.C. judge rules ex-gays are a protected class under Human Rights Act

The Washington Examiner reports today that D.C. Superior Court Judge Maurice Ross ruled in June that ex-gays are a protected class under the D.C. Human Rights Act:

The decision emerged from a complaint filed more than five years ago by the Virginia-based Parents and Friends of Ex-Gays & Gays, an organization that claims to lead the nation "in providing outreach and public awareness in support of families and the ex-gay community."

The human rights office ruled in 2005 that the National Education Association was legally right to bar PFOX from leasing an exhibit booth during the NEA's annual convention in Dallas three years earlier.

PFOX appealed to the D.C. Superior Court. In his ruling, issued in June, Ross found "no probable cause the NEA discriminated against PFOX on the basis of sexual orientation when it denied public accommodation services." The NEA, the judge said, had the right to exclude the ex-gay group because it believed the organization was hostile toward homosexuals.

But Ross also ruled that the District's human rights office "erred in determining that ex-gays are not a protected class under the HRA." The law prohibits acts of discrimination against 18 classes, including gays and the homeless.

"The premise of the HRA is simple: to end all discrimination based on anything other than individual merit," the judge wrote.

Sexual orientation is defined in the D.C. Human Rights Act as heterosexuality, homosexuality, and bisexuality, by preference or practice. "Ex-gay" is not an orientation, since it focuses on what a person is not (or claims not to be) rather than what he or she is. Presumably, an ex-gay identifies as heterosexual, and is protected on that basis. But NEA's refusal to rent booth space at its conventions to PFOX was based on the views PFOX was expressing, not their orientation. Regina Griggs and her colleagues at PFOX are entitled to express their discredited views, but (as Judge Ross recognized) are not entitled to rent space from NEA for that purpose.

While GLAA has responded strongly to ex-gay junk science, we also defended PFOX's First Amendment right to participate on an equal basis in a D.C. Metro System PSA program. But that was because WMATA, as a quasi-governmental body, was prohibited by the First Amendment from favoring one group's expression over another's. NEA is not governmental, and has a right to defend its own expressive purpose.

GLAA stands by our August 2003 letter to Kenneth Saunders, director of the D.C. Office of Human Rights, backing NEA against PFOX's discrimination complaint:

GLAA as you are aware has been involved with defending and strengthening the DC Human Rights Act (DCHRA) since it was first drafted in 1973. GLAA also faced strong criticism for defending PFOX's First Amendment rights to have their ads displayed at Metro stations last year. With this in mind, we feel very strongly that PFOX's claim is without merit.

NEA is subject to the DCHRA in employment and union membership and appears to be in full compliance of these provisions. However, their conventions are explicitly expressive events fully protected by the First Amendment. NEA, like any private entity and especially as an advocacy organization, is fully entitled to determine which groups and which messages may be promoted at their event.

This situation is substantially similar to the case in Curley v. Irish-American Gay, Lesbian & Bisexual Group of Boston (94-749), 515 U.S. 557 (1995). In that unanimous Supreme Court case, the South Boston Allied War Veterans Council elected not to allow a gay group (GLIB) from marching in their St. Patrick's Day parade. Justice David Souter wrote:

"Although the Council has been rather lenient in admitting participants to its parade, a private speaker does not forfeit constitutional protection simply by combining multifarious voices, by failing to edit their themes to isolate a specific message as the exclusive subject matter of the speech, or by failing to generate, as an original matter, each item featured in the communication. Thus, petitioners are entitled to protection under the First Amendment. GLIB's participation as a unit in the parade was equally expressive, since the organization was formed to celebrate its members' sexual identities and for related purposes."

The NEA is similarly fully entitled to protection under the First Amendment. While the First Amendment trumps the DCHRA, we also fail to see how the NEA is in violation of the DCHRA itself.

NEA's conventions may fall within the definition of a public accommodation — although they probably do not — NEA has not denied PFOX members from attending the event. There is no provision requiring a public accommodation to make their space available to all comers to offer their own goods or services, only that no one be denied entrance and full enjoyment of the goods and services provided.

Additionally, it is unclear what category of discrimination is being denied. Certainly not sexual orientation, as gay, straight and bisexual people are all in attendance at the conventions and NEA staff and members and presenters are also well represented across sexual orientation lines. It appears that NEA has only restricted PFOX because of their expressive message which is at odds with NEA's own mission and message.

This fails to be a violation of the DCHRA and is fully protected by the First Amendment.

GLAA's view appears to have prevailed on this key point. Ms. Griggs, an irrational and fanatical person whom we have had the displeasure of encountering (there's an example of free expression for you), is claiming victory, but, notwithstanding her constant claim that so-called ex-gays are targets of discrimination, what she really objects to is that most people, including social scientists, clinicians, and educators, disagree with her. Her decision not to appeal the part of Ross's ruling that went against her is a tacit acknowledgment that she cannot force other private groups to become a party to her anti-gay propaganda. So the greater victory here is NEA's, and ours.

Update: Barrett Brick writes: "I've read the ruling now —'_Memorandum_Opinion.pdf — and PFOX are clearly trying to make lemonade out of lemons. And the ruling does cite and discuss the Hurley case. As to the aspect that PFOX celebrates, OHR seems clearly to have erred in claiming that the immutability of a charcteristic is a predicate for protection under the Human Rights Law. That's something GLAA would have to fight! Whether the Superior Court has erred too far in the other direction in the manner by which it finds the law extends to so-called ex-gays, well, that's another issue."


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The court ruled that PFOX was not discriminated against on the basis of sexual orientation, and it ruled that the NEA may deny PFOX access to its events and facilities because PFOX is an antigay organization.

Furthermore, the court did not conclusively rule that ex-gays constitute an explicitly protected class. The court reversed an earlier ruling that ex-gays are *not* a protected class, but it did not state that they *are* a protected class in D.C.

The court rationalized that, on the basis of the city's expansive Human Rights Act which defines sexual orientation by "preference or practice," ex-gays *might* hypothetically seek protection on the basis of their mutable decision not to "practice" homosexuality. However, the court found that no such discrimination had occurred in the case of the NEA.

What must happen next? D.C. should revise its Human Rights Act so that sexual orientation is not misdefined to include "practice" and especially not to include false claims of what one "isn't" rather than what one "is."

The public should be reminded that the court ruling has no bearing outside of D.C.; no other locality that I'm aware of, (mis)defines sexual orientation so broadly.
Mike Airhart
Truth Wins Out

Don't be silly, Mike. The Human RIghts Act is fine as it is. The definition of sexual orientation is meant to be broad and cover everyone. Almost all of the categories cover everyone.

The court ruled correctly. Ex-gays are presumably heterosexual, or they are homosexual, or possibly they are bisexual. All are covered. Discriminiation should not be legal against anyone on this basis. It doesn't matter if sexual orientation is a choice (preference) or if it is an activity (practice). It doesn't matter if someone is or is not actually heterosexual, homosexual, or bisexual. The HRA covers both actual and preceived sexual orientation.

We're not going to allow anyone to shoot holes in the HRA so that they can discriminate against gays, ex-gays, or anyone else. A law that protects us all, protects us best.

-Bob Summersgill

I agree with Bob. The judge correctly ruled in favor of NEA. The "preference or practice" language in the definition of sexual orientation in DCHRA was quite deliberate. Mike, you have not begun to show how that is a mis-definition. What is the problem that needs to be fixed? The existing language has served us well for over three decades. I am sure Frank Kameny will stoutly defend it.

I agree that all should be protected, but under truthful terms.

The Act's language is troublesome, as I said, because it conflates separate issues -- orientation and behavior -- within the definition of orientation.

The ruling is additionally troubling because it adds the incongruent political and religious class of "ex-gay" to legitimate sexual classes: Heterosexuals, bisexuals, and homosexuals.

I have tried to point out to PFOX several times over the past decade, that ex-gays are covered as heterosexuals under existing antidiscrimination laws. Regina Griggs and Estella Salvatierra rejected that argument and insisted that ex-gays are different from heterosexuals, though obviously they refused to say how or why.

PFOX and its sponsors at FRC are purposely seeking legislative and judicial venues to redefine sexual orientation along ideological lines in order to force organizations and institutions -- schools in particular -- into admitting political groups who dishonestly claim an ex-gay orientation, as a means of promoting antigay animus. NEA was smart enough to see through PFOX's ploy, but others won't.

I reject the ruling's suggestion that "ex-gay" is a sexual orientation (or lack thereof), rather than an ideological orientation. If ex-gays or their lobbying groups have a genuine discrimination case to make, let them file a case based upon explicit anti-heterosexual discrimination or upon their antigay political beliefs -- not based upon a non-orientation.

Rick and Bob,

Do either of you agree that the court ruling's language potentially conflates actual sexual orientation with ex-gay political/religious identity, or that the HRA misdefines orientation (attraction) in a fashion that can be abused by religious rightists in other jurisdictions?

Without wishing to undermine an HRA that has generally served its locale well, I am hoping that you understand my concern for potential confusion nationally as the meme spreads that ex-gay is a sexual orientation, regardless of whether it is defined as such in different states?

Mike, in my original posting I linked (among other things) to a stern response to one ex-gay advocate that shows GLAA's strong opposition to their junk science. I have stated the incoherence of the idea that "ex-gay" is an orientation (saying what you're not does not say what you are, unless it means in this case that they're either heterosexual or homosexual, which Griggs denies). Really, Griggs is just lying as usual. "Ex-gay" is indeed different from heterosexualit--it is suppressed homosexuality, as ex-gay leaders have actualy acknowledged. So the whole case is nonsense on stilts; but the judge ruled in favor of NEA.

As to your concern about the definition in DCHRA, I am rather well versed in these issues and do not see the problem. the CDC talks about MSM, men who have sex with men, because of the need to deal with the reality that many high-risk folks do not acknowledge being gay. That of course is in the context of tracking and treating HIV/AIDS. But in the civil rights realm, I don't think we should exclude this class of people from protection.

The following is from Frank Kameny:

In response to Craig's suggestion, I am responding at some length here to the attached message.

First, two preliminary points. (1) I question whether there is any actual discrimination against ex-gays as claimed by Griggs of PFOX. I tend to think that it's all fictional and invented. I would like to see actual factual cases, before I am willing to accept that this is real. If so, so be it, but for the present I just don't believe it.

(2) Perhaps I miss a step in the logic, but I don't comprehend why the
language as to "practice" should be deleted from the HRA definition of Sexual Orientation, why this is a misdefinition" and what Airhart means as to how any of this says anything about "what one isn't". Absent this language, the HRA would be uequivocally guaranteeing anti-discrimination protection only for celibate gays.

I was responsible for the inclusion of this language in the HRA although I didn't draft the actual phrasing itself. The history is as follows.

As our efforts to fight homophobic discrimination gradually formed and intensified through the 1960s, we simply pushed, narrowly, for inclusion, or non-exclusion of gays in particular contexts and situations, without precise detailed analysis beyond that.

One of my major projects was reform in this respect of the US Civil Service Commission (CSC), of which I had been a victim in 1957. I was well aware of their proscription of "Immoral Conduct" (rescinded in 1975) but didn't pursue the precise implications of that.

There was extensive communication between me and the CSC through the 60s and into the 70s. much of it in my papers in the Library of Congress. Late in the 1960s -- perhaps even as late as 1970 or even 1971, although I think earlier than that -- I was in communication with a CSC official -- probably in their Office of General Counsel -- either by letter of by phone conversation. In paraphrase here (although the paraphrase accurately reprsesents the content of what he said) he said: "Of course we don't discriminate against homosexuals. We just discriminate against people who engage in those dreadful homosexual acts".

This came to me as a blinding revelation. It became clear that we had been too fuzzy, conceptually, and that we had to sharpen up our rhetoric so as explicitly to protect all gays from exclusion, and not just celibate ones. From that point forward, phrased consistently with the context of the moment, I always made that explicitly clear.

Actual anti-discrimination gay-rights laws began to appear on the scene around 1971 or so. To my knowledge, the first one was a superficial, one-liner enacted in East Lansing, Michigan about 1972. Our own then-appointed City Council began work upon what became Title 34 and now the HRA about that time (1973). I fed into them the concept of the need for explicit inclusion of protection of sexually-active gays, although I didn't suggest specific language. The person working on this -- I forget her name, although I'll recognize it if I hear it -- was very cooperative and competent, and in due course came back to me with the current language, including "by preference or practice" in the definition. It hit the mark with precision; I approved of it to her, and we've had it ever since.

In those days, of course, with most sodomy laws still in effect, this was very necessary lest gays be excluded simply because they were habitual, repetitive, recidivist criminals -- usually felons. With the final repeal of the DC sodomy law in 1993, and the overturn of all of them in 2003, the need has softened but by no means vanished. With the ever-noisier appearance on the scene of the "We don't hate the sinner; we just hate the sin" people, and the push for conscience exclusions from adherence to anti-discrimination laws, retention of this language is vitally necessary.

While the language was originally conceived of in terms of sexual activity, it is obvious and incontrovertible that entrance into marriage with a spouse of one's choice is also a part of sexual orientation "in practice", fully and equally for homosexuals and heterosexuals, and that as the law on initiatives and referenda currently stands, there can be none on same-sex marriage. just as a referendum on recognition of non-local ssm's was ruled out recently.

I hope that this has been useful. I welcome comments, reactions, and questions on this.

Frank Kameny.

My correspondence and conversations with Washington City Paper today were piecemeal. After initial statements that I disagree with the cited aspects of the HRA and court-ruling language, I concluded with my statement that I respect GLAA and the positive overall impact of the HRA, but retain misgivings about religious-right misuse and misportrayal of that language nationally.

I maintain that private consensual same-sex and opposite-sex sexual behavior should be protected from discrimination, but I do not believe this has to be linked -- in other cities across the country -- to the definition of sexual orientation.

I would be happy to discuss this further in private.
Mike Airhart
mike ?at? truthwinsout dot org

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