From the Seattle Times (h/t to Outsports):
A federal judge has refused to dismiss a lawsuit filed by three men who claim they were disqualified from the 2008 Gay Softball World Series near Seattle for not being gay enough.
The men, members of a San Francisco softball team, say they were questioned in front of a room full of strangers about their sexual preferences after a protest was lodged alleging their team had violated a rule that limited to two the number of heterosexuals on any team.
The three men, who are bisexual, say the questioning was intrusive and allege in the lawsuit that the event's sponsor and its rule violate state anti-discrimination laws.
However, U.S. District Judge John Coughenour found that the North American Gay Amateur Athletic Association, which sponsors the yearly event, can keep its rule. The First Amendment guarantees of freedom of expression and association allow organizations like the softball association to limit membership to individuals with like-minded beliefs in order to promote a broader agenda — in this case, ensuring gay athletes have a safe and accepting community in which to play, he ruled.
The judge ruled Tuesday on a series of motions brought by both sides in anticipation of an Aug. 1 trial.
The suit was backed by the National Center for Lesbian Rights in San Francisco, which had framed it as a push for bisexual rights. It contended the rule discriminated against bisexuals by not including them in the definition of "gay."
Coughenour rejected that contention in the broader sense by not issuing an injunction against the rule, but said "treatment of bisexuals remains of central importance to this case" and that the association "could still be liable for its actions" under the Washington Laws Against Discrimination for actions at the 2008 games.
To that end, the judge ruled that the association operated as a "public accommodation" by inviting public attendance, charging a fee and providing a service, and therefore must comply with the state's anti-discrimination laws.
And the judge said the First Amendment protections go only so far, pointing to the U.S. Supreme Court's recent decision in the case of the Westboro Baptist Church in Kansas, whose members spread virulent anti-gay messages at the funerals of U.S. soldiers.
"The court concluded that the First Amendment does not protect all speech," the judge wrote. "Whether or not Defendant's treatment of Plaintiffs at the protest hearing is deserving of First Amendment Protection remains to be seen."
The plaintiffs — Stephen Apilado, LaRon Charles and John Russ — were members of the team D5, which made it to the finals of the Gay World Series in 2008.
During the game, the manager of another team filed a protest under the rule that limits the number of non-gay players. The men contend they were brought, one at a time, into a room containing as many as 25 people and questioned about their sexual preferences.
The panel members then voted on whether they men were gay or "non-gay." Several ballots were held, and the men said the process was humiliating.
Seattle attorney Michael Reiss, who represented the softball association, said he was pleased that the court allowed it to keep its rule and recognized its right to chose its members. He said the organization would "vigorously dispute" the men's version of what occurred in the protest meeting.
Suzanne Thomas, an attorney representing the men and the National Center for Lesbian Rights, praised the judge for finding the association is subject to the state anti-discrimination laws, and said she looked forward to trying the remainder of the case.
"No one should have to go through what they experienced," she said.
She said that, as a result of this lawsuit, the association has recently changed its rules to include bisexual and transgender people.
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