Outing Gay Baseball

Lawyers Suzanne Thomas and Michael Reiss negotiate how gay a league needs to be

Published in 2012 Washington Super Lawyers Magazine — July 2012

Suzanne Thomas had it all figured out in first grade. “I wanted to be a nun-scientist,” she says, laughing. “I really liked my nun [at school]. And I also really liked my pediatrician.” But it became clear to Thomas, at the ripe age of 8 or 9, that this career path might not pan out.

The law, however, was another story. “I got it right in second grade,” Thomas says. “I just knew: lawyer.” Thomas’ parents instilled in her a strong sense of justice. “I imagine that’s partly what drove me [toward the law],” she says. “I also had a big mouth.”

Thomas started out in complex commercial litigation in the financial-institution sector, until one of her longtime banking clients was sued by an employee who claimed gender discrimination. “The employment partner in the firm at the time did not have any bank experience, so I was asked to help him understand the banking side of things,” Thomas says. Shortly thereafter, the employment lawyer left and Thomas was asked to fill the position. “And 20 years later, here I am,” she says. “Working for employers, we can help them proactively avoid problems and increase the effectiveness of their work force, loyalty and morale … all the kinds of things that generate good business.”

Thomas believes good business practices are critical in her own industry, too. “The calling of law is a noble profession,” she says. “We owe an obligation to give to the community in a pro bono publico way.”

Back in the early 1990s, as a volunteer with the ACLU of Washington, Thomas represented Dallas Malloy, a high school student who wanted to compete in Golden Gloves amateur boxing. The U.S. Boxing Federation refused Malloy because of her gender. Thomas helped her become the first U.S. amateur female boxer to have a sanctioned amateur bout.

It was because of Thomas’ renown in the civil/sports arena—and the fact that she’s an out attorney—that her name came up when a group of bisexual softball players filed suit against the North American Gay Amateur Athletic Alliance (NAGAAA) in 2010.

Her pro bono clients were three players on a team called D2, which advanced to the final game of a softball tournament, ultimately finishing second. Prior to the start of the game, officials told D2’s members that a team they had played earlier in the tournament had protested that five of D2’s 16 players—two Caucasian and three African-American—might not be gay.

“NAGAAA has ABCD leagues, so if someone is playing in a C league and it seems they’re a better player, someone can say, ‘Hey, there are ringers on that team; they’re too competent,’” says Thomas. In this case, based on the NAGAAA’s rule that only two non-gay players could be on each team, the five players’ sexual orientation was challenged at a hearing after the game.

“My clients were called in and asked questions about their sexual orientation, and then the panel voted on whether they believed them to be gay or believed them to be hetero,” Thomas says. “There was nothing in between; no bisexuality was recognized. So they were voted. People just voted on them.” The panel found that the three African-American players were “not gay enough,” stripping D2 of its second-place title and scratching its players’ names out of the record books.

“This showed some historical stereotyping and prejudice based on stereotypes, although this kind of worked in a reverse way,” Thomas says. Thomas called on the help of experts in discrimination against men of color relating to sexual orientation. “The fact that they would have to declare themselves either quote ‘gay’ or ‘bisexual’ are typically not terms many men of color would adopt, even if they engage in same-sex relationships,” Thomas says. “The case involved the intersection of discrimination in both of those communities.”

Her opponent in the case was Michael Reiss, an employment litigator at Seattle’s Davis Wright Tremaine. “The individuals who organize NAGAAA’s Gay Softball World Series are amazing volunteers who care deeply about the LGBT community,” he says. “They firmly believe in their First Amendment rights that protect their freedom to send the message that openly gay individuals can succeed anywhere.”

NAGAAA settled in November 2011, agreeing to reinstate the team’s second-place finish and to change its rules to allow an unlimited number of LGBT players. The court affirmed the organization’s right to limit the number of straight players, to provide sports opportunities for the gay community. Both Reiss and Thomas were pleased.

“Judge [John] Coughenour emphatically upheld our clients’ First Amendment rights,” says Reiss, “and our clients continue to put on a great annual Gay Softball World Series that showcases the entire lesbian, gay, bisexual and transgender community.”

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