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Posts for August, 2009

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.