“Ex-Gays” Protected Under D.C. Human Rights Act, Judge Rules
A Virginia "ex-gay" group won a small victory alongside a big defeat in D.C. Superior Court this summer.
In 2002, Parents and Friends of Ex-Gays (PFOX) applied for an exhibit booth at the National Education Association's annual convention, "Expo 2002." PFOX submitted an application, signed a deposit check, and prepared its exhibit: an educational display, it claims, "to promote tolerance and equality for the ex-gay community." The NEA denied PFOX's application, citing limited booth space. PFOX suspected there was another motive at play: sexual orientation discrimination.
In 2005, POX filed a discrimination claim with the D.C. Office of Human Rights against the NEA for "refusing to provide public accommodations to ex-gays." When the D.C. Office of Human Rights sided with the NEA, PFOX appealed the decision to D.C. Superior Court. Judge Maurice Ross handed down the decision [PDF] in June of this year: PFOX's request to reverse the OHR's decision was denied.
But Ross's decision wasn't a total loss for PFOX: While Ross decided in the NEA's favor, he also held that ex-gays do, in fact, constitute a protected group under the D.C. Human Rights Act. Judging from PFOX's eerily celebratory press release, this is kind of a big deal for them.
According to Ross's 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" —like people who previously "practiced" gayness, and now "prefer" to practice heterosexuality:
OHR’s 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 §2-1401.02(28) defines sexual orientation as “male or female homosexuality, heterosexuality and bisexuality, by preference or practice.” Thus, the HRA's 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's ultimate determination that PFOX's application was denied legally. In NEA’s judgment, PFOX is a conversion group hostile toward gays and lesbians. Thus, even though PFOX vehemently disagrees with NEA’s characterization, it is within NEA’s right to exclude PFOX’s presence at NEA’s 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’s arguments miss the point. The NEA did not reject its application because PFOX’s members include exgays, homosexuals, heterosexuals, or members of any other sexual orientation. Rather, NEA rejected PFOX’s application because PFOX’s message and policies were, in NEA’s opinion, contrary to NEA’s policies regarding sexual orientation.
In other words, the Human Rights Act protects groups who identify as "ex-gay" based on their previous and current sexual "practices." It does not, however, protect those groups in spreading anti-gay agendas. Somehow, that part was left out of the press release.