How discrimination works

This is probably the funniest story I’ve read all week. We’re covering it here because it’s the sort of thing other left blogs studiously avoid, and because it illustrates something about the tangles you can get into with liberal rights theory:

Three bisexual men are suing a national gay-athletic organization, saying they were discriminated against during the Gay Softball World Series held in the Seattle area two years ago.

The three Bay Area men say the North American Gay Amateur Athletic Alliance in essence deemed them not gay enough to participate in the series.

The lawsuit filed Tuesday in U.S. District Court in Seattle accuses the alliance of violating Washington state laws barring discrimination. The alliance organizes the annual Gay Softball World Series.

Beth Allen, the alliance’s attorney, said the lawsuit is unwarranted and that the three plaintiffs “were not discriminated against in any unlawful manner.”

In any case, Allen said, the alliance is a private organization and, as such, can determine its membership based on its goals.

Whether the alliance is public or private will likely have to be determined in court, since the plaintiffs characterize the alliance as a “public accommodation” that’s open to the public and uses public softball fields.

You can get the details here, but here’s the condensed version. These three dudes join a gay softball team called D2. The team enters a national gay softball championship in Seattle. It performs well, coming second. At this point, one of the teams it beat cries foul. The rules of the contest say a team can only have a maximum of two straight players, and D2 is accused of playing ringers.

So the three dudes are hauled into a tastefully appointed star chamber, and in front of an audience of over 25 other men are questioned in excruciating detail about their sexual preferences, before the star chamber rules that the three dudes are not gay enough and disqualifies their team.

This being America, they then sue on the basis of a Washington state law that says you can’t discriminate on the grounds of sexual orientation, and are claiming $75,000 for emotional distress. In a wonderful twist, they’re having legal representation provided by the National Center for Lesbian Rights, although I’m pretty sure the three dudes aren’t lesbian.

What this will come down to, legally, is whether the North American Gay Amateur Athletic Alliance is a public body – its events are open to the public and it uses public sports facilities – and therefore banned from discriminating. NAGAAA attorneys would have it that NAGAAA is a voluntary association and therefore is entitled to select its membership based on sexual orientation.

This may all sound like wacky American litigation, but it’s exactly the sort of thing that New Labour’s Sexual Orientation Regulations have guaranteed will happen in Britain. I eagerly look forward to Mr Ben Summerskill explaining to a court that of course discrimination is fine, as long as it’s the right sort of people doing the discriminating…


  1. ejh said,

    April 24, 2010 at 4:17 pm

    Well, it might be nice to wait until Mr Summerskill actually expresses an opinion before we decide what his opinion is, but what point is actually being illustrated here other than that real life is complicated and that any set of rules or laws will experience hard cases at their very blurry edges?

    • splinteredsunrise said,

      April 24, 2010 at 4:44 pm

      But it’s not a question of hard cases at the very blurry edges. It’s a question that’s built into the very model that the government has adopted. The reason I mention Mr Summerskill is that he’s very keen to bring the full weight of the law down on those whose views he deems “outdated”, but doesn’t seem to realise that the very same laws could see people he approves of being bitten in the bum.

      • Phil said,

        April 24, 2010 at 6:13 pm

        This seems little different from the right-wing argument that the Black Police Association is racist. I think in both cases the benefit of having a law that prevents discrimination against minorities who would actually suffer from discrimination outweighs the awkwardness of unintended consequences like this. (In another part of the forest, we await your impassioned defence of Adrian Watson’s stand against government-enforced liberal uniformity.)

      • April 24, 2010 at 10:31 pm

        Technically, the equivalent of this would be Barack Obama being banned from participating in a black politician’s convention because his mum was white. Speaking as a big gay queer myself, I am very intrigued to find out what the NAGAA’s standards for “gay enough” are, and whether I’d qualify under them.

  2. ejh said,

    April 24, 2010 at 5:19 pm

    1. It’s a question that’s built into the very model that the government has adopted

    What model would you prefer?

    2. he’s very keen to bring the full weight of the law down on those whose views he deems “outdated”

    Isn’t he in fact keen to deal not with views and their datedness, but with actual, real discrimination?

    3. doesn’t seem to realise that the very same laws could see people he approves of being bitten in the bum

    Why would you say so?

    • splinteredsunrise said,

      April 24, 2010 at 7:45 pm

      1. One of my basic problems with liberal rights theory, especially when it comes to positive rights, is that it’s never figured out what to do when two sets of rights conflict. This is aggravated if you adopt a policy of legalising and quangoising the situation.

      2. On the issue of views and their datedness, you can now get a maximum of seven years in the chokey for homophobic hate speech, and thanks to assiduous lobbying from Stonewall, Labour and the Lib Dems are committed to repealing the free speech defence in the Waddington amendment. I stress that I don’t intend to engage in homophobic hate speech myself, and some people may enjoy the sight of half the DUP being banged up, but this worries me slightly.

      3. Litigation is a funny thing, you never know who’s going to win or lose. Which is something that should be borne in mind when framing legislation in the first place.

      • ejh said,

        April 24, 2010 at 9:24 pm

        And how would you propose to do that?

        Hate speech is not simply “views”, is it? Isn’t that something that hs been thrashed out many times in discussion of whether we should have laws about racial incitement?

      • splinteredsunrise said,

        April 24, 2010 at 9:51 pm

        There is also a law against incitement to religious hatred, but I haven’t noticed it cramping Terry Sanderson’s style. This is because there’s a free speech defence written in. The point being that if you have a hate speech law without these defences, you end up in very dangerous territory. Look at the regional human rights tribunals in Canada, which are actually instructing people to stop writing prejudiced letters to their local papers.

        I notice, by the way, that Peter Tatchell is supporting the retention of the Waddington amendment. I think he’s being a bit opportunistic about this, but there you go.

  3. harry monro said,

    April 24, 2010 at 5:36 pm

    s/s I’m not sure what’s so wacky here. If you have no objections I think the link at the end gives more details, the comments are especially useful. What they highlight I think is that some gay people refuse to accept that bisexuals exist or are “real” (authenticity is always a problem with all identity politics, but especially nationalism) and that racism may also be the issue here. That a Lesbian advocacy group is prepared to defend non white bisexual men from prejudicial treatment, I find admirable.

  4. weserei said,

    April 24, 2010 at 6:32 pm

    1. If NAGAAA is using any public facilities, then that’s the legal equivalent of taking tax money. Which means that kicking out players for being bisexual is equivalent to the government subsidizing discrimination on the basis of sexual orientation. And so NAGAAA needs to build its own damn softball field. All of this is very firmly settled case law in the US–the sort of thing that they teach you the first damn day of high school civics. If NAGAAA doesn’t like it, they can, as noted, get their own damn softball field.

    2. The National Center for Lesbian Rights hasn’t been a specifically lesbian organization for a long time. The “Lesbian” part is kept around for historical reasons, like in the case of the Southern Poverty Law Center, or Fianna Fail The Republican Party.

    3. “Wacky American litigation” is largely a myth, and largely propagated by large companies that don’t like to pay damages when they happen to negligently kill a few dozen people. It’s true that we have broad, sweeping, and almost unalterable guarantees of personal (and state) rights of various kinds, and that these sometimes have unfortunate or annoying consequences. But on the other hand, a newspaper can report that someone was drunk, and we don’t have CCTV on every corner, and we’ve had a Catholic president. The US Constitution is a package deal, like Catholic social teaching, and with similar religious connotations. It’s not a salad bar where you get to take what suits your fancy.

  5. magistra said,

    April 24, 2010 at 10:49 pm

    From a quick look, the English regulations have legislated on this issue. The Employment Equality (Sexual Orientation) Regulation 2003 classifies sexual orientations as heterosexual/homosexual/bisexual.The Equality Act (Sexual Orientation) Regulations 2007 c 17 say that associations intended to benefit people of a particular sexual orientation are allowed to discriminate, but one of the key factors is whether most of the members are actually of that orientation. So a gay sports club or the like could only discriminate if it could demonstrate that it didn’t have a lot of actual bisexuals/straights among its members, which would be tricky.

  6. April 25, 2010 at 3:52 am

    […] Splintered Sunrise: How discrimination works […]

  7. April 25, 2010 at 1:04 pm

    […] problems caused by intersectionality, outdated tribalism and the arrogance of the idiot in public. Three Seattle men have been banned from the North American Gay Amateur Athletic Alliance (NAGAAA) for, wait for it […]

  8. Tom said,

    April 26, 2010 at 11:44 am

    Very dissapointed to see this turn into another Summerskill bashing at the end without providing any examples/evidence to show that this is the kind of thing Ben gets up to.

    This sounds like the same old tripe that the right spews out about ‘identity politics’ and how the only people you can now discriminate about are white male hetrosexuals.

    I don’t have strong views either way on ‘positive discrimination’ but I think it’s foolish to wish that you were marginalised enough to need it.

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