pageok
pageok
pageok
Is Discrimination Against Ex-Gays Sexual Orientation Discrimination Under D.C. Law?

The National Education Association — basically an advocacy group and a labor union — refused to lease Parents and Friends of Ex-Gays (PFOX) exhibit space at its 2002 convention, because the NEA disapproved of PFOX's position that gays and lesbians can and ought to "make the choice to leave homosexuality." PFOX then sued, claiming that this constituted sexual orientation discrimination in a place of public accommodation, in violation of D.C. human rights law.

The D.C. Office of Human Rights rejected this claim, in Parents and Friends of Ex-Gays, Inc. v. National Education Association, among other things concluding that discrimination against "ex-gay[s]" doesn't qualify as prohibited sexual orientation discrimination:

Title VII and the United States Constitution define the characteristics of the categories that are protected from discrimination as immutable characteristics, i.e. those characteristics that are not subject to change as race, national origin, and gender. Therefore, the OHR's determination that Complainant, as an Ex-Gay, is not a member of a protected category is supported by Complainant's own definition of itself as "a man or woman who has left homosexuality and is now a heterosexual by preference or practice." Complainant's definition of an Ex-Gay clearly does not assume an immutable characteristic since an Ex-Gay is someone who was once a homosexual, but has reverted to a heterosexual. Immutable characteristics are those characteristics that a person is born with and/or has no control over and, therefore, the law prohibits discrimination based on those characteristics. Ex-Gays, as defined by Complainant, appear to have control over their sexual orientation and, therefore, the OHR correctly determined that they do not belong to a protected category.

This reasoning, of course, isn't limited to the unusual situation of discrimination against an advocacy group because of the group of people whom it represents, or because of the position that it espouses. It also applies to discrimination against particular individuals because they describe themselves as ex-gay. And the reasoning strikes me as clearly wrong.

First, the D.C. Human Rights Act bans discrimination not only based on immutable characteristics, but also based on always or sometimes mutable ones — "religion, ..., marital status, personal appearance, ... familial status, family responsibilities, ... matriculation, political affiliation, source of income, or place of residence or business." Antidiscrimination law aims to ban discrimination not just based on characteristics that people can't change, but also (among other things) on characteristics that the law judges they shouldn't have to change (religion being the most common example). So there's no reason to assume that "sexual orientation" discrimination is banned only to the extent that sexual orientation is immutable.

Moreover, sexual orientation is defined as "male or female homosexuality, heterosexuality and bisexuality, by preference or practice" (emphasis added). And this is quite consistent with how the term is casually used. Say, for instance, that an employer fires an employee because the employee is a bisexual woman who has shifted from engaging in heterosexual relationships into engaging in lesbian relationships. The employer might even be sincere in limiting its basis of discrimination this way; say the employer reasons, "if a woman has been lesbian all her life, I won't fault her for her acting on that — but if a woman can be with a man but chooses to be with a woman, that's a chosen sin, and I don't want anything to do with her."

Of course that's sexual orientation discrimination, even though it's discrimination based on a matter — sexual "practice" — that is both "mutable" in theory (anyone can avoid any sexual "practice," setting aside cases of rape, by just not engaging it, even to the point of entirely abstaining of sex) and in practice (this woman did change her practice, and might well be able to live a fulfilling life while entirely abstaining from lesbian sex).

We don't even have to decide whether the woman was genuinely bisexual, or was once straight and has changed her orientation to lesbianism. I know there's controversy about whether that's possible, but I suspect that it's virtually impossible to resolve whether it's possible, and in any case the law doesn't require that the controversy be resolved.

All that's important is that the employer discriminated based on a combination of "sexual ... preference" (bisexuality) and "sexual ... practice" (lesbianism). Someone with a different preference/practice mix (e.g., bisexual preference and heterosexual practice, or by hypothesis lesbian preference and lesbian practice) wouldn't have been fired, but someone with this preference/practice mix was.

The same is true for bisexuals-by-orientation whose practices were once homosexual, but whose practices are now heterosexual — or for homosexuals-by-orientation who say they've managed to change their practices to heterosexual. It doesn't matter whether they believe they've changed, or conclude that if they are now happy with their heterosexual practices, they must have really been bisexual by orientation all along (maybe even if they've deluded themselves into thinking that they were originally entirely homosexual). What matters is that treating ex-gays worse than straights-all-along is sexual orientation discrimination.

As I'll explain in the next post, the NEA should still be entitled to refuse to lease space to PFOX — but because of the NEA's Free Speech Clause rights, and not based on the Office of Human Rights' reasoning. And the basis makes a difference, because the Office of Human Rights' reasoning applies even to the typical discrimination case, where the employer's Free Speech Clause rights wouldn't be involved.

Related Posts (on one page):

  1. The National Education Association's Right To Discriminate in Choice of Exhibitors at Its Convention:
  2. Is Discrimination Against Ex-Gays Sexual Orientation Discrimination Under D.C. Law?
Sarcastro (www):
Fairness!
10.17.2008 2:39pm
TruePath (mail) (www):

All that's important is that the employer discriminated based on a combination of "sexual ... preference" (bisexuality) and "sexual ... practice" (lesbianism). Someone with a different preference/practice mix (e.g., bisexual preference and heterosexual practice, or by hypothesis lesbian preference and lesbian practice) wouldn't have been fired, but someone with this preference/practice mix was.


This seems to be false. The NEA seems to have had no problem with their sexual practice. Had this been a group of men and women who had admitted to exploring homosexuality while younger and had identified as gay before deciding to identify as straight they likely wouldn't have thought twice.

What the NEA seems to be discriminating based on is the implicit message that being gay is wrong. That belief is not itself a sexual preference/practice.
10.17.2008 2:39pm
Richard Aubrey (mail):
A booth on how to lose weight would send the implicit message that being fat is wrong.
Examples will no doubt occur to you, which means that discrimination on the basis of such an implicit message is a lame excuse, not a legitimate reason.
10.17.2008 2:45pm
Deoxy (mail):
While I can certainly see the logic in this, and even agree with it, does anyone remember the outrage over the opposite decision involving the Boy Scouts? I'd be shocked if that didn't include a pretty good chunk of the NEA decision makers.

As long as the courts themselves are even-handed in this, it's hard to complain about it from a legal perspective, but I will certainly point out the hypocrisy of my opponents.
10.17.2008 2:48pm
gattsuru (mail) (www):
The NEA seems to have had no problem with their sexual practice. Had this been a group of men and women who had admitted to exploring homosexuality while younger and had identified as gay before deciding to identify as straight they likely wouldn't have thought twice.


Even if we're assuming the courts can and should go into such hidden causes, I'm not sure there's a distinction between what you're saying and what Mr. Volokh is saying.

It doesn't matter that the NEA disagreed with the specific combination of their sexual practices and declared sexual orientation, rather than just one of the matter. As long as their actions were based on those matters, it would violate the letter of the law.

I'd think the whole First Amendment thing would make such matters moot... but that's also why I'm not the sort of judge that makes decisions this far from the letter of the law.
10.17.2008 2:58pm
Randy R. (mail):
Richard: "A booth on how to lose weight would send the implicit message that being fat is wrong. "

Not quite. If the booth stated that being fat is wrong and immoral, and that you really need to lose weight or you go to hell, and if you are happy with being fat then you are immoral, then you would have an anology. I would agree that's an inappropriate message and most organizations would not allow such a group to participate in their exhibits.

However, most people don't associate being fat with immorality (even though gluttony is one of the seven deadly sins) and in fact, most fat people would like to lose weight. Heck, even most average people want to lose weight. So there isn't a problem with weight loss booths. Proof? Find anyone who objects to weight loss programs being advertised on tv, at the gym, or any place else.
10.17.2008 3:06pm
Sarcastro (www):
[NEA is a government actor, isn't it? So, unlike with the Boy Scouts, the 1st Amendment applies.

And this is clearly viewpoint discrimination.

Not to mention if one reads the statute with any modicum of intensionalism this clearly is the sort of wrong the legislature sought to prevent.]
10.17.2008 3:07pm
Richard Aubrey (mail):
Randy R.
Nice try. Failed.
Problem is, people who are fat may want to lose weight, but are traumatized--just ask them--if anybody mentions their obesity.
Obese people are constant trouble to others. Furniture breaks, there isn't sufficient room on aircraft, they have to be catered to when some physical effort is involved.
As many people have mentioned, and as the actuarial tables will show, gays have a shorter life span than heteros, just as the obese compare to the lean.
You need not be preaching burning hell to make the case that gay is wrong, in some sense.
10.17.2008 3:15pm
Armistead (mail):
"If estimates of an individual gay and bisexual man's risk of death is truly needed for legal or other purposes, then people making these estimates should use the same actuarial tables that are used for all other males in that population. Gay and bisexual men are included in the construction of official population-based tables and therefore these tables for all males are the appropriate ones to be used."

http://ije.oxfordjournals.org/cgi/content/full/30/6/1499
10.17.2008 3:21pm
Doug Sundseth (mail):
Re: [Sarcastro]

It's my understanding that the NEA is a private actor seeking rents from the government, not a government actor. As such, its first amendment rights are not encumbered by restrictions on government speech except as a contractual matter. And in this case, there seems to be no contractual impediment, either.
10.17.2008 3:28pm
Sarcastro (www):
[Doug Sundseth thanks.

I was too lazy to google it myself.]
10.17.2008 3:33pm
Nathan_M (mail):

Problem is, people who are fat may want to lose weight, but are traumatized--just ask them--if anybody mentions their obesity.

Either you're wrong or that's mean. I'm no longer convinced you're motivated by a sincere desire to help double-Americans. (Is that the politically correct term?)
10.17.2008 3:39pm
Kazinski:
We don't even have to decide whether the woman was genuinely bisexual, or was once straight and has changed her orientation to lesbianism.

And rightly so, such questions should only be considered with audiovisual exhibits in the privacy of ones home.
10.17.2008 3:40pm
Randy R. (mail):
Richard: "You need not be preaching burning hell to make the case that gay is wrong, in some sense."

Well, I guess that's a small relief! But please, go ahead and tell how I am 'wrong" otherwise.

"As many people have mentioned, and as the actuarial tables will show, gays have a shorter life span than heteros, "

But of course we don't. Any other things you don't like about being gay? I lead a fantabulous life. I don't have cooties, if that's what you mean. Oh sure, I know some friends who are in therapy, but then, I hardly know any straight people who haven't had some therapy. Just what is it about heterosexuality that makes you people so in need of mental help?
10.17.2008 3:41pm
whit:

Find anyone who objects to weight loss programs being advertised on tv, at the gym, or any place else.



here's some interesting analogous threads from SSFA (Soc Support Fat Acceptance)

one of the newsgroups I used to post on back in the day, often would get into raging flame wars with these SSFA nimrods.


here's some representative posts:


I see fat acceptance as
(1) a personal psychological process for which we all need support,
and
(2) a public sociopolitical struggle to which many of us wish to
contribute.


I see this newsgroup (s.s.f-a) as a support group for both of those
goals.


So many fat activists (myself included) find *any* talk about diets
and weight loss to be antithetical to those two goals, that I don't
think they belong in this support group. A simple explanation in the
charter about how most people find diet talk unpleasant and
unsupportive, about how only 1% of diets work, and suggestions about
where to find information and support about dieting, would be
sufficient.


But this is a important issue, no doubt about it—perhaps an issue
that is at the heart of the fat acceptance movement. I see it as
similar to the decision, early in the gay rights movement, to ignore
the fact that a tiny percentage of gay and lesbian people who are
unhappy with their sexual preference decide to return to being
entirely heterosexual. The leaders of the gay rights movement said,
"We are not merely *stuck* with being gay: we *choose* to be gay."


To talk about why some diets work, to discuss what characterizes those
people, is to imply, in effect, that there is something *wrong* with
being fat. I don't want to buy into that reasoning in any way, shape,
or form. I want to continue to be fat and embrace that fact, not
endlessly (and it would be endless, if such talk is allowed on the
newsgroup) discuss why that is the only choice available for 99% of
us. If a fairy godmother came up to me tomorrow and said, "Guess what!
I have magically turned you into one of the 1% of people who can diet
and keep your weight down," I would say to her, "Buzz off. I don't
want it. I *choose* to be fat."


Say, if gay rights is about sexual preference, maybe fat acceptance
and fat rights is about *size preference*. I have a size preference
every bit as much as a person who diets to be thin has a size
preference. I like that!





International No Diet Day (INDD) is an annual celebration of body
acceptance and diversity.
It is observed on May 6 each year.


WHAT IS INDD?
INDD is a day to:


* Celebrate the beauty and diversity of ALL our natural sizes &shapes
* Affirm everyBODY's right to health, fitness, and emotional well-being
* Declare a personal one-day moratorium on diet/weight obsession
* Learn the facts about weight-loss dieting, health, and body size
* Recognize how dieting perpetuates violence against women
* Honor the victims of eating disorders and weight-loss surgery
* Help end weight discrimination, sizism and fatphobia


WHO CELEBRATES INDD?
INDD is for everyBODY! Since its origin in 1992, INDD has been
celebrated by size acceptance, anti-diet, body image, and eating
disorders activists, groups, and individuals around the world who want
to empower people of all sizes. Events and activities will be held in
cities and towns spanning the globe.


oh noes! dieting perpetuates violence against women!!
10.17.2008 3:43pm
NickM (mail) (www):
Based on the DC OHR's "reasoning", wouldn't that make sexual orientation therefore not immutable and bar them from protecting homosexuals against discrimination?

Throwing out the law in an attempt to be clever is seldom a good idea.

Nick
10.17.2008 3:53pm
Michael B (mail):
Politically Correct dicta, aka rationalizations used to reach a predetermined conclusion, aka casuistically plied bullshit.
10.17.2008 5:17pm
Michael B (mail):
And yes, "casuistically plied bullshit" is a tautology, but the emphasis is deserved as it reflects the multi-layered bullshit leveraged by the D.C. Office of Human Rights.
10.17.2008 5:21pm
TruePath (mail) (www):
Richard Aubrey:


A booth on how to lose weight would send the implicit message that being fat is wrong.
Examples will no doubt occur to you, which means that discrimination on the basis of such an implicit message is a lame excuse, not a legitimate reason.


gattsuru:


It doesn't matter that the NEA disagreed with the specific combination of their sexual practices and declared sexual orientation, rather than just one of the matter. As long as their actions were based on those matters, it would violate the letter of the law.


Your missing the point. There are really two components to message sent by PFOX. First, that they are formerly gay individuals and secondly that it's morally superior for others to be like them. The second is what the NEA objects to and is the reason they want to keep them out of the exhibit. This isn't some hypertechnical parsing but a commonsense interpretation of the NEA's motivations.

The mere fact that the NEA's objection to a particular sort of message happens to overlap with people having certain sexual preferences isn't (in and of itself) enough to show there is discrimination based on sexual preference. I mean if the NEA refused to host a radical feminist organization broadcasting the opinion that men were brutish thugs and inferior to women it wouldn't be gender discrimination because this group partially communicated their message through their entirely female membership.
10.17.2008 6:30pm
Richard Aubrey (mail):
True

You think the NEA would refuse an exhibit like that?
Really?
10.17.2008 7:02pm
Michael B (mail):
TruePath,

Your "morally superior" concern is - from the standpoint of 1st Amendment and anti-discrimination concerns - a form of circular reasoning and nothing beyond that; it's a non sequitur. Both sides are claiming, are positing, a type of "superior" moral consideration. What your argument reflects is an inability to step back from your own presumptive, morally superior view - and therein allow others their 1st Amendment and anti-discriminationist rights.

The very purpose of the 1st Amend. and anti-discrimination statutes is to help ensure against such prejudicial conceptions usurping others' basic rights in the marketplace of ideas.
10.17.2008 7:03pm
TruePath (mail) (www):
Richard Aubrey:

No, it was a hypothetical. I thought it was helpful to phrase the hypothetical in the opposite political direction so those of a more conservative persuasion would be more likely to be sympathetic to the hypothetical and thus feel the force it puts on their position on the actual case.

Michael B:

We aren't talking about the 1st amendment here at all. In a later post it comes up as a defense of the NEA's right to discriminate but here we are merely talking about statutes that prevent the government from discriminating against people based on sexual orientation.

Of course both sides of the debate are claiming the moral superiority of their position. So what. The question is whether the NEA based their deciscion on a legally impermissable attribute (sexual orientation) or a legally permissible one (presenting a moral view that being gay is wrong).

Still, one might reasonably argue that laws barring discrimination based on sexual orientation protect people from discrimination as a result of being out about their orientation. For instance these laws would likely be seen as applying to an employer who fired anyone who wore a gay pride pin while allowing people to wear any other types of pin. So if the law treated expressions of belief about the morality of homosexuality symmetrically you would be right.

The law, however, is not symmetric with respect to pro and anti-gay opinions. Laws barring sexual orientation discrimination are explicitly aimed at preventing people from suffering discrimination because they proudly admit to their orientation. They are not aimed at preventing discrimination against those who wish to express their anti-homosexual opinions. You may disagree and think this is unfair but as a matter of legislative intent it covers one sort of expression and not the other.

----

Perhaps a better analogy is this. Suppose the NEA had barred an exhibit created by gay artists because it clearly expressed the view that being gay is better than being straight and that straight people should convert. Do you think this would be covered under the law? Since this is not an expression of pride/lack of shame about one's own sexual orientation (goes way beyond saying it's ok to be gay) I would argue it wouldn't be sexual orientation discrimination to discriminate against this viewpoint.
10.18.2008 2:37am
realAniram (www):
thank you for putting up this site, i am working on a news article for my community on hate crimes and discrimination. your site has been very helpful.
10.19.2008 9:11am
ReaderY:
If the DC law protects only immutable characteristics, then it would at least arguably give protection to religions which claim immutable membership status -- that is, religions who believe that members who claim to have left the religon are merely sinners and have not actually left it. Thus, it would appear that DC law would give protection to at least some Jewish and Moslem groups, but not to most Christians.

It could be argued that giving protection to religions only if their canon law provides for immutability of religious status is a violation of the First Amendment Establishment Clause, but that is a constitutional issue, not a statutory one. There are such relgions, and what the DC Human Rights Commission said makes sense and if this is DC's policy, the law has substance and its substance has coherenece and is not logically absurd (one may disagree with it or think it wrong, but that's different) as applied to the subject of religion.

I would think the more serious issue would be the subject of sexual orientation. If the DC statute protects only immutable sexual orientation, and some people can change their orientation, it would appear that at the very least, people would have to prove that their sexual orientation is the immutable kind in order to get the law's protection. That would seem a very difficult thing to do.

Presumably the existence of transexual surgery has already rendered gender a mutable and therefore nonprotected class. Or perhaps there may some people not able to change genders who remain protected. Perhaps they have medical conditions which would make such surgery especially dangerous and inadvisable. But even then the possible and the advisable may be two different things.

The whole issue rtepresents the serious problems that come when one reads simple, all-embracing rationales into complex and fought-over laws and then attempts to make the rationales drive interpretation at the expense of text and history. Laws can have many rationales or be compromises between conflicting rationales. Posited rationales may reflect judges' personal beliefs. And judges' beliefs are not only notoriously inconsistent with legislators views at times. In some cases, they can be inconsistent with observable reality.
10.19.2008 5:31pm
UntwistedTruth (mail) (www):
"i.e. those characteristics that are not subject to change as race, national origin, and gender..."

The DC Office of Human Rights uses legal double-talk and circular logic to maintain its gay ideoolgy.

On the one hand, if DCOHR wants to cite immutabilty as the foundation for protection of sexual orientation, then that should demand that they reject inclusion of ex-gays on the basis that Ex-Gays do not exist.

But obviously, they knew the first two things PFOX would do is march ex-gays into court to testify that they do exist and point out to the court that no scientific body--even gay supporters like the APA--can present any replicated scientific study that says homosexuality (etc.) is innate.

So instead, DCOHR accepts Complainant PFOX's definition ("an Ex-Gay clearly does not assume an immutable characteristic since an Ex-Gay is someone who was once a homosexual, but has reverted...") soley to disqualify Ex-gays from discrimination.

They just ignore the fact that accepting PFOX's ex-gay definition that ex-gays are in fact former homosexuals refutes their own "immutability" argument to protect homosexuality as innate in the first place.
10.19.2008 7:42pm
UntwistedTruth (mail) (www):
TruePath:


"There are really two components to message sent by PFOX....secondly that it's morally superior for others to be like them."

False argument...PFOX has never made such inference or claim in its pleading, in its literature, or on its wesite (www.pfox.org)


"[Has] NEA based their deciscion on a legally impermissable attribute (sexual orientation) or a legally permissible one (presenting a moral view that being gay is wrong)."

False argument: No moral view is expressed or implied. See above. One like yourself certainly has the right to read what you want into it but it is still irrelevent to the law re: public accomadation.
10.19.2008 8:23pm
UntwistedTruth (mail) (www):
Randy R:

"'As many people have mentioned, and as the actuarial tables will show, gays have a shorter life span than heteros.'

But of course we don't."


Absolutely false: These gay researchers said (http://ije.oxfordjournals.org/cgi/content/full/30/6/1499):


In our paper, we demonstrated that in a major Canadian centre, life expectancy at age 20 years for gay and bisexual men is 8 to 21 years less than for all men. If the same pattern of mortality continued, we estimated that nearly half of gay and bisexual men currently aged 20 years would not reach their 65th birthday. Under even the most liberal assumptions, gay and bisexual men in this urban centre were experiencing a life expectancy similar to that experienced by men in Canada in the year 1871.


These gay researchers strenuously object to "homophobic groups" citing the research and also say medical advances have improved the numbers.

Unfortunately, in a overt display of ideological dominence over their scientific integrity, they then suggest:

(As Armistead quoted above...)
"If estimates of an individual gay and bisexual man's risk of death is truly needed for legal or other purposes, then people making these estimates should use the same actuarial tables that are used for all other males in that population. Gay and bisexual men are included in the construction of official population-based tables and therefore these tables for all males are the appropriate ones to be used."


Such a stance could only be scientifically valid if homosexuals practiced no differenct behaviors as the population at large--which of course, they don't.

It is quite distressing to see how often even respected gay researchers are seemingly forced into bizarre backslides on their own legitimate life saving research when apparently demanded by militants if the truth hurts the political cause.

Just as in the 'gay civil war' in the 70s-80s: Gay bathhouses were well known by both the medical and gay community to be the epicenters of AIDS in America--then called GRID (Gay Related Immuno Deficiency) because it was so overwhelmingly confined to male homosexuals.

Political militants argued that the stigma to the gay cause of closing bath houses outweighed saving gay lives. Politics won.

Nevertheless, ongoing CDC, Surgeon General, and NIH reports all confirm that the LGBT population is at extaordinarily higher risk for a whole multitude of maladies from cancers to STDs to mental health to substance abuse.
10.19.2008 9:02pm