The decision came in a lawsuit filed by three men who say they were disqualified from the annual tournament because they weren't gay enough. They said in the suit filed last year that their team's second-place finish in the 2008 tournament in Washington state was nullified because they are bisexual, not gay, and thus their team exceeded the limit of two non-gay players.
U.S. District Judge John Coughenour said Tuesday that their suit can proceed to trial. But he also ruled that the North American Gay Amateur Athletic Alliance, which also oversees gay softball leagues in dozens of U.S. cities, has a First Amendment right to limit the number of heterosexual players, much as the Boy Scouts have a constitutional right to exclude gays.
"It would be difficult for NAGAAA to effectively emphasize a vision of the gay lifestyle rooted in athleticism, competition and sportsmanship if it were prohibited from maintaining a gay identity," the judge wrote.
However, Coughenour said questions remain about the way the softball association applied its rule, including whether the questions asked about the men's sexuality at a protest hearing were unnecessarily intrusive. Therefore, the case can proceed toward a trial set for Aug. 1, he said.
The San Francisco-based team the men played on, D2, was disqualified after others at the tournament questioned their sexuality and filed a protest. Under questioning, the men, Stephen Apilado, Laron Charles and John Russ, were evasive or declined to discuss their sexuality, according to the organization.
For example, minutes of the hearing say that Charles claimed to be gay but acknowledged being married to a woman, and Apilado initially said he was both gay and straight but then acknowledged being more attracted to women.
The minutes say rumors had persisted for years about whether D2 was stacking its team with straight ringers. In addition to the three plaintiffs, the team had two designated straight players. The organization says it has always considered bisexuals to meet the definition of "gay" for roster purposes, but the minutes also note that one official involved in the decision to disqualify D2 commented that "this is not a bisexual world series. This is a gay world series."
"Plaintiff's allegations about defendant's treatment of bisexuality remain of central importance to this case," the judge said. "Defendant could still be liable for its actions."
Chris Stoll, a spokesman for the National Center for Lesbian Rights in San Francisco, which is representing the three men, said Friday its lawyers were reviewing the opinion and legal options.
"We think that the law is clear; NAGAAA doesn't have a First Amendment right to discriminate on the basis of sexual orientation," he said.