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by Melida Ortega

In 2000, the Supreme Court of the United States, in Boy Scouts of America v. Dale,[1] held that the Boy Scouts of America (“BSA”) had a constitutional right to bar homosexuals from serving as troop leaders.[2] The Court based its decision on the First Amendment of the United States Constitution’s Freedom of Association Clause.[3] The Court drew a distinction between a scout leader maintaining his or her sexual identity privately versus expressing his or her sexual identity publicly.[4] Concerning this distinction, the Court concluded the BSA could discriminate on the basis of a scout leader’s public display of his or her sexual identity, but not on his or her private sexual identity.[5] The BSA were successful in Dale because the Court determined that the BSA were engaged in expressing a certain viewpoint[6] or idea, which is a First Amendment protected activity.[7]

After the Dale decision, the BSA faced enormous social scrutiny for its anti-gay policy. The BSA’s openly anti-gay policy led some of its corporate donors to withhold funding.[8] In 2013, due in large part to social scrutiny, the BSA lifted its ban against homosexual youth.[9] This marked a historic moment for the BSA, however many critics and gay rights activists urged the BSA to lift the ban against homosexual adult leaders as well. Many pro-gay rights scout leaders supported the idea that “[j]ust because the BSA has the legal right to deny LGBT[Q] people membership doesn’t mean that it is morally right.”[10] This gave rise to an array of possible theories as to why the BSA would not lift the ban on openly gay Scout Leaders. In the end however, gay scout leaders would win this battle. [11]

In 2015, the BSA lifted its ban and allowed openly gay men to become scout leaders.[12] Once again the BSA made history, and once again the BSA succumbed to social pressure. This was evidenced months before the historic lift, when BSA then-President Robert Gates stated in the BSA’s annual meeting on May 21, 2015, that the BSA could not “ignore the social, political, and juridical changes taking place in our country—changes taking place at a pace no one anticipated.”[13] He further stated that the BSA “must deal with the world as it is, not as [the BSA] might wish it to be. The Status Quo in our . . . membership standards cannot be sustained.”[14]

Fast forward to 2017, nearly seventeen years after the United States Supreme Court decision in Dale, and now the BSA are welcoming Joe Maldonado, their first openly transgender boy.[15] On January 30, 2017, the BSA announced, “Starting today, we will accept and register youth in the Cub and Boy Scout programs based on the gender identity indicated on the application.”[16] The BSA’s decision to allow transgendered youth marks a revolutionary accomplishment for the LGBTQ community. However, the decision to allow transgender boys into the BSA does not mean that the issue is entirely over. The BSA website contains no written policy regarding transgender youth, which is in stark contrast to the Girl Scouts of America.[17] Issues regarding camping, sleeping arrangements, and the use of restrooms are issues that will likely arise.

[1] Boy Scouts of America v. Dale, 530 U.S. 640 (2000).

[2] Id. at 644.

[3] U.S. Const. amend. I (“Congress shall make no law . . . abridging the . . . right of the people peaceably to assemble.”).

[4] See Dale, 530 U.S. at 653–54.

[5] Id.

[6] See id. at 650 (The Court pointed out “the Scout Oath and Law do not expressly mention sexuality or sexual orientation.” But, also gave deference to the Boy Scouts assertion that the words “morally straight” and “clean,” which are contained in the Scout’s Oath, fell within the interpretation that those words are inconsistent with scouts engaging in homosexual conduct.).

[7] See generally Boy Scouts of America v. Dale, 530 U.S. 640, 651 (2000) (“[I]t is not the role of the courts to reject a group’s expressed values because they disagree with those values or find them internally inconsistent.”) (citation omitted).

[8] Art Moore, Look Which Companies Dumping Boy Scouts: Corporate Donors Quitting or Directing Cash to “Tolerant” BSA Programs, World Net Daily (Feb. 4, 2013, 11:58 PM), http://www.wnd.com/2013/02/look-which-companies-dumping-boy-scouts/.

[9] Jennifer Tyrrell, Boy Scouts of America Make a Historic Decision . . . Now It’s Time to Allow LGBT Adult Leaders!, Huffington Post, (May 28, 2013, 12:23 PM), http://www.huffingtonpost.com/jennifer-tyrrell/boy-scouts-of-america-mak_b_3339598.html.

[10] Id.

[11] See Phillip M. Miner, The Real Reason For the Boy Scouts’ Ban on Gay Scout Leaders?, Huffington Post, (Apr. 24, 2013, 8:56 PM), http://www.huffingtonpost.com/phillip-m-miner/the-real-reason-for-the-boy-scouts-ban-on-gay-scout-leaders_b_3133038.html (arguing that the Boy Scouts of America ban on Gay Scout Leaders is due to the organizations fear of child molestation).

[12] Todd Leopold, Boy Scouts Change Policy on Gay Leaders, CNN (Jul. 28, 2015, 9:16 AM), http://www.cnn.com/2015/07/27/us/boy-scouts-gay-leaders-feat/.

[13] Robert M. Gates, President, Boy Scouts of America, National Annual Business Meeting Remarks (May 21, 2015), http://scoutingnewsroom.org/wp-content/uploads/sites/2/2015/05/DR-GATES-REMARKS.pdf.

[14] Id.

[15] Isabelle Khoo, 9-year-old Becomes 1st Transgender Child to Join Boy Scouts, Huffington Post Can. (Feb. 9, 2017, 10:43 AM), http://www.huffingtonpost.ca/2017/02/09/first-transgender-boy-scouts_n_14657064.html.

[16] Tim Stelloh, Boy Scouts, Cub Scouts Begin Accepting Transgender Children, NBC News  (Jan. 30, 2017, 8:47 PM), http://www.nbcnews.com/feature/nbc-out/boy-scouts-cub-scouts-begin-accepting-transgender-children-n714471.

[17] See generally Briana Vannozzi, Boy Scouts Opens Doors to Transgender Youth, NJTV News (Feb. 3, 2017), http://www.njtvonline.org/news/video/boy-scouts-opens-doors-transgender-youth/.