D.C. judge rules ex-gays are a protected class under 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 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 http://pfox.org/Judge_Ross'_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."