Ex-Gay Group PFOX Loses Appeal in NEA Case

Despite their rather up-beat press release (and more than a few blog headlines), The Superior Court for the District of Columbia handed Parents and Friends of Ex-Gays, Inc (PFOX) a defeat today. PFOX had asked for a review of an earlier decision by the DC Office of Human Rights (OHR) which has jurisdiction over cases involving the DC Human Rights Act (HRA). That decision, prompted by a complaint filed by PFOX in 2003, found that the National Education Association (NEA) was within it’s rights to deny PFOX a booth at their annual convention in 2002. The DC Superior Court denied the relief requested by PFOX:

PFOX asks the Court to reverse OHR’s final decision finding no probable cause that NEA discriminated against PFOX on the basis of sexual orientation when it denied public accommodation services to PFOX by refusing to provide PFOX with exhibit space at EXPO 2002. As a matter of law, OHR erred in determining that ex-gays are not a protected class under the HRA. Regardless of whether or not OHR erred in its classification of ex-gays, it correctly found that PFOX’s exhibit booth application was rejected for non-discriminatory reasons.

Furthermore, while EXPO 2002 was held in Texas, OHR did have jurisdiction over the charge because the rejection of PFOX’s application occurred in D.C., where NEA was headquartered. Therefore, Petitioner’s request to reverse the OHR’s decision, the requested relief, is DENIED.

The confusion upon which PFOX has been able to claim this a victory stems from what appears to have been some sloppy statements in the original ruling by the OHR. While the HRA is written to be extremely broad in it’s interpretation of what might comprise a protected group, the OHR ruling upheld the claim that a group, in this case “ex-gays,” could be excluded as a protected category if it’s distinguishable trait is mutable. Immutability is not mentioned as a requirement in the HRA and so the DC Supreme Court found that the OHR erred in it’s determination as a matter of law.

It is important to note that the court did not make the determination that ex-gays do or do not constitute a protected group under the HRA, only that immutability could not be used as an exclusionary factor. PFOX has carried this, and the entire ruling, way beyond any proportion of fact.

The DC Supreme Court made a clear case for NEA’s right to do what it did:

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. NEA cites Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557 (1995), to support it’s jurisdictional argument, but the Court also finds it helpful in the analysis of whether or not NEA’s reasons for rejecting PFOX’s application were proper. In Hurley, the Supreme Court reversed the Supreme Court of Massachusetts in a unanimous opinion because the state court misapplied the Massachusetts public accommodations law to require private citizens who organize a parade to include among the marchers a group imparting a message that the organizers do not wish to convey. In Hurley, South Boston Allied War Veterans Council (the “Council”) denied defendant GLIB’s request to march in the Council’s St. Patrick’s Day parade. Hurley at 557-58. The Supreme Court agreed with the Council’s argument that it had no prohibition against homosexuals marching in the parade, rather the Council objected to the message GLIB sought to express in the parade. Id. at 572. The Supreme Court reversed the state court because the state court’s interpretation of Massachusetts’s public accommodations law essentially forced the Council to alter the message of its parade. Id. at 578-579.

Furthermore, NEA persuasively argues that its rejection of PFOX’s application was
proper in light of the facts and Hurley. 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.
Int’s Br. 8-9. 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. The analogy is persuasive because NEA rejected PFOX’s application not based on their personal traits, but rather because of PFOX’s mission and message. Certainly, other exhibitors at EXPO 2002 were homosexuals or heterosexuals, like the members of PFOX, but they were distinguishable from PFOX because the other exhibitors presented exhibits the NEA deemed to be agreement with its policies. Thus, PFOX’s arguments miss the point. The NEA did not reject its application because PFOX’s members include ex-gays, 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.

The case document is not long and makes it abundantly clear that this was not a win for PFOX but for the NEA. While it could be said that the original opinion was lacking, the court has determined that any errors of law did not affect the outcome of the decision and so it stands as it did before the appeal.

In fact, if the issue of immutability as presented here does anything, it is to counter some extreme, right-wing arguments against the inclusion of homosexuality as a protected class. Certainly there should be more than a few conservative pundants less than enthusiastic about PFOX today.

We encourage other blogs to review the case before helping to sustain the rather energetic spin placed on it by PFOX, an organization which has never been too concerned with the facts.