Is Discrimination Against Ex-Gays Sexual Orientation Discrimination Under D.C. Law?

The National Education Association — basically an advocacy group and a labor union — refused to lease Parents and Friends of Ex-Gays (PFOX) exhibit space at its 2002 convention, because the NEA disapproved of PFOX's position that gays and lesbians can and ought to "make the choice to leave homosexuality." PFOX then sued, claiming that this constituted sexual orientation discrimination in a place of public accommodation, in violation of D.C. human rights law.

The D.C. Office of Human Rights rejected this claim, in Parents and Friends of Ex-Gays, Inc. v. National Education Association, among other things concluding that discrimination against "ex-gay[s]" doesn't qualify as prohibited sexual orientation discrimination:

Title VII and the United States Constitution define the characteristics of the categories that are protected from discrimination as immutable characteristics, i.e. those characteristics that are not subject to change as race, national origin, and gender. Therefore, the OHR's determination that Complainant, as an Ex-Gay, is not a member of a protected category is supported by Complainant's own definition of itself as "a man or woman who has left homosexuality and is now a heterosexual by preference or practice." Complainant's definition of an Ex-Gay clearly does not assume an immutable characteristic since an Ex-Gay is someone who was once a homosexual, but has reverted to a heterosexual. Immutable characteristics are those characteristics that a person is born with and/or has no control over and, therefore, the law prohibits discrimination based on those characteristics. Ex-Gays, as defined by Complainant, appear to have control over their sexual orientation and, therefore, the OHR correctly determined that they do not belong to a protected category.

This reasoning, of course, isn't limited to the unusual situation of discrimination against an advocacy group because of the group of people whom it represents, or because of the position that it espouses. It also applies to discrimination against particular individuals because they describe themselves as ex-gay. And the reasoning strikes me as clearly wrong.

First, the D.C. Human Rights Act bans discrimination not only based on immutable characteristics, but also based on always or sometimes mutable ones — "religion, ..., marital status, personal appearance, ... familial status, family responsibilities, ... matriculation, political affiliation, source of income, or place of residence or business." Antidiscrimination law aims to ban discrimination not just based on characteristics that people can't change, but also (among other things) on characteristics that the law judges they shouldn't have to change (religion being the most common example). So there's no reason to assume that "sexual orientation" discrimination is banned only to the extent that sexual orientation is immutable.

Moreover, sexual orientation is defined as "male or female homosexuality, heterosexuality and bisexuality, by preference or practice" (emphasis added). And this is quite consistent with how the term is casually used. Say, for instance, that an employer fires an employee because the employee is a bisexual woman who has shifted from engaging in heterosexual relationships into engaging in lesbian relationships. The employer might even be sincere in limiting its basis of discrimination this way; say the employer reasons, "if a woman has been lesbian all her life, I won't fault her for her acting on that — but if a woman can be with a man but chooses to be with a woman, that's a chosen sin, and I don't want anything to do with her."

Of course that's sexual orientation discrimination, even though it's discrimination based on a matter — sexual "practice" — that is both "mutable" in theory (anyone can avoid any sexual "practice," setting aside cases of rape, by just not engaging it, even to the point of entirely abstaining of sex) and in practice (this woman did change her practice, and might well be able to live a fulfilling life while entirely abstaining from lesbian sex).

We don't even have to decide whether the woman was genuinely bisexual, or was once straight and has changed her orientation to lesbianism. I know there's controversy about whether that's possible, but I suspect that it's virtually impossible to resolve whether it's possible, and in any case the law doesn't require that the controversy be resolved.

All that's important is that the employer discriminated based on a combination of "sexual ... preference" (bisexuality) and "sexual ... practice" (lesbianism). Someone with a different preference/practice mix (e.g., bisexual preference and heterosexual practice, or by hypothesis lesbian preference and lesbian practice) wouldn't have been fired, but someone with this preference/practice mix was.

The same is true for bisexuals-by-orientation whose practices were once homosexual, but whose practices are now heterosexual — or for homosexuals-by-orientation who say they've managed to change their practices to heterosexual. It doesn't matter whether they believe they've changed, or conclude that if they are now happy with their heterosexual practices, they must have really been bisexual by orientation all along (maybe even if they've deluded themselves into thinking that they were originally entirely homosexual). What matters is that treating ex-gays worse than straights-all-along is sexual orientation discrimination.

As I'll explain in the next post, the NEA should still be entitled to refuse to lease space to PFOX — but because of the NEA's Free Speech Clause rights, and not based on the Office of Human Rights' reasoning. And the basis makes a difference, because the Office of Human Rights' reasoning applies even to the typical discrimination case, where the employer's Free Speech Clause rights wouldn't be involved.

The National Education Association's Right To Discriminate in Choice of Exhibitors at Its Convention:

As I mentioned below, the National Education Association -- basically an advocacy group and a labor union -- refused to lease Parents and Friends of Ex-Gays (PFOX) exhibit space at its 2002 convention, because the NEA disapproved of PFOX's position that gays and lesbians can and ought to "make the choice to leave homosexuality." PFOX then sued, claiming that this constituted sexual orientation discrimination in a place of public accommodation, in violation of D.C. human rights law.

I argued below that the D.C. Office of Human Rights' reason for rejecting PFOX's claim -- that ex-gays aren't protected from sexual orientation discrimination by D.C. law -- was mistaken. But the NEA should still be entitled to act as it did, because of its Free Speech Clause rights.

The NEA excluded PFOX from a speech product that the NEA put together (the exhibitors at its conference), because it disapproved of PFOX's message. As Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston recognized, organizations that create such speech products have a constitutional right to control what speech they include and what they exclude. And that's true even if the speech product doesn't have a terribly coherent message. In Hurley, the Court protected the rights of the organizers of a St. Patrick's Day parade, though the parade consisted of a bunch of marching groups, floats, and banners, and the organizers had only very rarely excluded participants as unsuitable:

Rather like a composer, the Council selects the expressive units of the parade from potential participants, and though the score may not produce a particularized message, each contingent's expression in the Council's eyes comports with what merits celebration on that day. Even if this view gives the Council credit for a more considered judgment than it actively made, the Council clearly decided to exclude a message it did not like from the communication it chose to make, and that is enough to invoke its right as a private speaker to shape its expression by speaking on one subject while remaining silent on another. The message it disfavored is not difficult to identify. Although GLIB's point (like the Council's) is not wholly articulate, a contingent marching behind the organization's banner would at least bear witness to the fact that some Irish are gay, lesbian, or bisexual, and the presence of the organized marchers would suggest their view that people of their sexual orientations have as much claim to unqualified social acceptance as heterosexuals and indeed as members of parade units organized around other identifying characteristics. The parade's organizers may not believe these facts about Irish sexuality to be so, or they may object to unqualified social acceptance of gays and lesbians or have some other reason for wishing to keep GLIB's message out of the parade. But whatever the reason, it boils down to the choice of a speaker not to propound a particular point of view, and that choice is presumed to lie beyond the government's power to control.

When an advocacy group such as the NEA puts together an exhibition -- even by soliciting people to participate, and to pay money for the privilege -- it is implicitly conveying the message that the exhibitions convey messages that are of value to the group's members, and that are broadly at least potentially sound (morally or politically). If the messages were primarily commercial advertising, especially of products that aren't themselves fully protected speech, the Hurley rule would not apply. But when someone is putting on an exhibition, whether of art or of education and advocacy, they have a First Amendment right to decide which speech to include and which to exclude.

Note that the NEA's being a specially federally chartered corporation doesn't strip it of this First Amendment right, just as the Boy Scouts' being a specially federally chartered corporation doesn't strip it of its First Amendment rights. Perhaps if the NEA got a subsidy from D.C., and D.C. could condition the subsidy on a decision not to discriminate in its events against certain classes of speakers (though that itself is not entirely clear). But D.C.'s antidiscrimination law isn't triggered by receipt of subsidies.

Finally, note that it's not clear whether D.C.'s public accommodation law should even be interpreted as applying to conference exhibitor choices, or for that matter to discrimination based on an exhibitor's sexual-orientation-related speech as opposed to the exhibitor's own sexual orientation. But even if it is interpreted this broadly (much like Massachusetts courts interpreted Massachusetts law this broadly in Hurley), the Free Speech Clause would protect the NEA's right to choose which speakers to allow into the exhibitions at its conferences.