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PFOX Declares Victory in Court Defeat

Timothy Kincaid

August 25th, 2009

In March 2002, Parents and Friends of Exgays and Gays – an anti-gay political activist group – requested an exhibit booth space at the NEA annual convention, EXPO 2002 in Dallas, TX. The NEA said, thanks but no thanks.

PFOX sued in the District of Columbia under the District’s very inclusive Human Rights Act claiming discrimination against ex-gays. On May 24, 2005, the Office of Human Rights issued stated that PFOX had no probable cause because ex-gays are not members of a protected class under the HRA based on the plain language of the statute and even if PFOX was part of a protected class, NEA rejected PFOX\’s application for non-discriminatory reasons.

PFOX appealed in federal court and on June 26, 2009, Federal Judge Maurice Ross issued his opinion.

The basis for OHR’s finding that ex-gays are not protected was that because PFOX denies that orientation is immutable, therefore they by definition were not discriminated against due to an immutable characteristic. In other words, those who believe orientation to be innate are protected by non-discrimination laws while those who believe it is transitory are not.

While that is an amusing and ironic position, it didn’t fly with the judge. Because the case was tried under D.C.’s HRA, there is no requirement for immutable characteristics.

Indeed, the HRA lists numerous protected categories such as religion, personal appearance, familial status, and source of income, which are subject to change. The HRA\’s purpose is “to secure an end in the District of Columbia to discrimination for any reason other than that of individual merit….”

And it is on this partial finding that PFOX is declaring a great victory. In their press release today they announce:

In a precedent setting case, the Superior Court of the District of Columbia has ruled that former homosexuals are a protected class that must be recognized under sexual orientation non-discrimination laws. The Court held that, under the D.C. Human Rights Act, sexual orientation does not require immutable characteristics.

Well, yes. In the District of Columbia, one cannot be discriminated against solely because of their ex-gay practices.

Nor should they be.

We have long stated and truly believe that non-discrimination policies that protect happily gay men and women also protect heterosexuals and those same-sex attracted persons who now call themselves heterosexuals. Ironically, it has been a standing practice of PFOX to oppose all non-discrimination policies under the claim that they discriminate against ex-gays.

However, as this ruling is based on D.C.’s HRA, it is limited to the District.

And, most importantly, the judge found that it is perfectly reasonable for the NEA to exclude PFOX. Because the NEA did not exclude them for being ex-gay, but rather because they have a disruptive political agenda that is contrary to that of the NEA.

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.

So PFOX lost.

And their only “victory” was one that most gay folk would be willing to concede: that ex-gays should not be subject to discrimination just for being ex-gay but ex-gay political groups can be excluded because of their message.



August 25th, 2009 | LINK

most gay folk would be willing to concede: that ex-gays should not be subject to discrimination just for being ex-gay

Sad how they refuse to give us the same courtesy.

August 25th, 2009 | LINK

Well, that seems fine to me. I take it to mean simply that, whether or not there’s really such a thing as an ex-gay, someone who claims to be one can’t be discriminated against on the basis of it, just as presumably anyone else making an eccentric claim (e.g. to be a reincarnation of Mark Twain or of Mary Baker Eddy) can’t be discriminated against on the basis of it either.

August 25th, 2009 | LINK

I heard about this on Signorelle on the way home. Yes it IS sad that they don’t give us the same courtesy. As an “ex-straight”, I should be able to have the same protections that they’re clamoring for.

Two things I’d need to hear as a judge in this case.

One: what are specific instances that ex-gays are discriminated against, and by whom?

Two: Are the ex-gays trying to claim that “ex-gay” is distinctly separate sexuality class? If so, what are the differences between ex-gay and gay and ex-gay and straight?

August 25th, 2009 | LINK

Twisted, contorted, and often contradictory “logic” is no strange territory to these folks.

August 25th, 2009 | LINK

So why was the case decided in DC? Is that where the NEA is headquartered or were the PFOX people venue shopping?

I’m curious who represented them? Or is this another pick a fight case from the Alliance Defense Fund or ACLJ crowd?

Lynn David
August 26th, 2009 | LINK

Am I wrong or did PFOX actually just win a case for gay rights?! So if they fight against our rights, they are by extension fighting against the rights of their precious ex-gays (which isn’t even a sexual orientation, but more a socio-religious point of view against one’s own sexuality). PFOX is getting more and more loony-tunes….

Christopher Waldrop
August 26th, 2009 | LINK

Lynn, thank you for asking that because I was scratching my head and thinking the same thing. This statement was the one that set me back a bit: “Ironically, it has been a standing practice of PFOX to oppose all non-discrimination policies under the claim that they discriminate against ex-gays.” I did a double-take there because, if I understand this correctly, PFOX sued in favor of a non-discrimination policy.

Timothy Kincaid
August 26th, 2009 | LINK

The game PFOX is playing goes like this:

1. Get some court to say that ex-gays are a protected class

2. Try and get someone somewhere to declare that ex-gay is an orientation

3. Demand that schools include the “ex-gay orientation” in all lessons that include information about sexuality

4. Use that to teach in schools that “you don’t have to be gay, you can change through the power of Jesus Christ”

Bruce Garrett
August 27th, 2009 | LINK

“Am I wrong or did PFOX actually just win a case for gay rights?! ”

Well they certainly ripped apart their own (and the anti-gay industry’s) rhetoric about gay folk not deserving protection because homosexuality (they claim) is not an immutable characteristic. They just congratulated themselves for getting a judge to throw out that argument as it applied to them.

…which, of course, means they’ll still keep right on applying that argument to gay folk anyway, since of course that is a completely different thing…

Bruce Garrett
August 27th, 2009 | LINK

“Try and get someone somewhere to declare that ex-gay is an orientation…”

But…wait…they’re saying they’re not gay anymore. They’re straight now…right? Ex-Gay is Not Gay Anymore. Correct? Isn’t that…well…Straight? Heterosexual? Not Gay? Alan is straight now…right? Isn’t he? Didn’t he say so while he was testifying against same-sex marriage? He’s straight. Happily married and all that. Right? Straight is an orientation. How discriminated against are straight folks in this country…?

Regan DuCasse
August 27th, 2009 | LINK

Exactly Bruce! WTF?
Just WHAT kind of discrimination are they beefing about? In what way are their lives compromised, their freedoms diminished if they are living AS straight people?

Perhaps PFOX needs to get educated on what discrimination means, and more precisely, exactly in what way they are DAMAGED.
Being RESTRICTED from promoting false, inaccurate and defamatory information is not discrimination. Nor is it bigotry.
Ideology or dogma is not restricted in churches, so obviously they aren’t discriminated against there.

If these people are so wedded to what is choice and what isn’t, the choice NOT to be a part of their program, the choice to be honestly and openly gay without constant bombardment of self and social esteem attacks should be respected.

Hedging that there be no choices with the force of government is so obvious, don’t they understand that religious belief isn’t enforced in this country?

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