The antigay parents group PFOX claimed today that it has won recognition of “former homosexuals” as a protected sexual orientation in a D.C. Superior Court ruling. PFOX said:
“We are gratified that the ex-gay community in Washington D.C. now has the same civil rights that gays enjoy,” said Regina Griggs, executive director of Parents and Friends of Ex-Gays & Gays (PFOX), which had filed the lawsuit against the District of Columbia government for failing to protect former homosexuals in the Nation’s Capital.
In a discrimination complaint filed by PFOX against the National Education Association (NEA) for refusing to provide public accommodations to ex-gays, the D.C. Office of Human Rights (OHR) had agreed with the NEA that sexual orientation protection did not extend to former homosexuals. “By failing to protect former homosexuals, the sexual orientation laws gave more rights to homosexuals than heterosexuals who were once gay,” said Griggs. “So PFOX asked the Court to reverse OHR’s decision, which it did. The Court held that ex-gays are a protected class under ‘sexual orientation.’”
“All sexual orientation laws and programs nationwide should now provide true diversity and equality by including former homosexuals,” said Greg Quinlan, a director of PFOX. “I have experienced more personal assaults as a former homosexual than I ever did as a gay man.”
Not so fast, Greg. The court did not reverse OHR’s decision; it ruled in June 2009 that the NEA was justified in excluding PFOX for its stridently discriminatory, antigay literature, and it chose not to reverse the decision. According to Washington City Paper:
While [Judge Maurice] Ross decided in the NEA’ favor, he also held that ex-gays do, in fact, constitute a protected group under the D.C. Human Rights Act. Judging from PFOX’ eerily celebratory press release, this is kind of a big deal for them.
According to Ross’ decision, the Human Rights Act doesn’t only protect groups defined by “immutable characteristics,” as the Office of Human Rights’ decision claimed. The Act also protects groups defined by “preference or practice” ‚Äîlike people who previously “practiced” gayness, and now “prefer” to practice heterosexuality:
OHR’ determination that a characteristic must be immutable to be protected under the HRA is clearly erroneous as a matter of law. . . . Indeed, the HRA lists numerous protected categories such as religion, personal appearance, familial status, and source of income, which are subject to change. . . . Pertaining to sexual orientation, moreover, the HRA in ¬ß2-1401.02(28) defines sexual orientation as “male or female homosexuality, heterosexuality and bisexuality, by preference or practice.” Thus, the HRA’ intent and plain language eschews narrow interpretation.
But while the NEA can’t discriminate against “ex-gays,” it may legally discriminate against exhibits that are explicitly anti-gay:
The Court affirms OHR’ ultimate determination that PFOX’ application was denied legally. In NEA’ judgment, PFOX is a conversion group hostile toward gays and lesbians. Thus, even though PFOX vehemently disagrees with NEA’ characterization, it is within NEA’ right to exclude PFOX’ presence at NEA’ conventions. . . . Indeed, the HRA would not require NEA to accept an application from the Ku Klux Klan or a group viewed by the NEA as anti-labor union or racist. . . . Similarly, military organizations and the Boy Scotts of America are excluded from renting exhibit space at the NEA Annual Meetings because of the positions those organizations take with regard to gay and lesbian rights.
. . . Thus, PFOX’ arguments miss the point. The NEA did not reject its application because PFOX’ members include exgays, homosexuals, heterosexuals, or members of any other sexual orientation. Rather, NEA rejected PFOX’ application because PFOX’ message and policies were, in NEA’ opinion, contrary to NEA’ policies regarding sexual orientation.
In other words, the D.C. Human Rights Act may protect groups who identify as “ex-gay” based on their mutable, previous and current sexual “practices” but does not — contrary to PFOX’s wishes — protect ex-gay activist groups such as PFOX that seek to use other organizations as soapboxes to spread political opinions and policies that are contrary to those of the host organization.
Unfortunately, the D.C. court has also legitimized a ludicrous claim that sexual orientation can be defined by what one isn’t, rather than what one demonstrably is.
Addendum: Given a great deal of misreporting by various blogs, I wish to reiterate:
Blame for the court’s logic regarding sexual orientation lies with the D.C. Human Rights Act (HRA), which broadly defines orientation as a matter of either “preference” or “practice.” The court observed:
While [Office of Human Rights'] analysis and the Title VII cases cited by OHR speak in terms of immutable characteristics, the HRA clearly does not limit itself only to immutable characteristics. The premise of the HRA is simple: to end all discrimination based on anything other than individual merit. Numerous protected classes listed in the HRA include mutable traits. Furthermore, the definition of sexual orientation defines an individual’ sexuality as a “preference” or “practice.” D.C. Code ¬ß2-1401.01. OHR’ analysis posits that the immutability of a person’ preferred sexual orientation categorizes them as a member of a protected class. In focusing on federal discrimination cases, however, the OHR misses the broad scope of the HRA and the explicit inclusion of the term “practice” in the HRA’ definition of sexual orientation.
If PFOX truly affirms D.C.’s Human Rights Act, then it will not only respect the NEA’s right not to host hostile and discriminatory organizations such as PFOX, but also move to hire “practicing” gay people in accord with PFOX’s claim to represent both “ex-gays” and those who “practice” homosexuality.
It remains the responsibility of the D.C. Council and mayor to reconsider language in the Human Rights Act which misdefines sexual orientation as a matter of “practice” or lack thereof.