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“We’re not homophobic!” ICANN pleads as it throws out .gay appeal

Kevin Murphy, February 3, 2016, 20:44:07 (UTC), Domain Policy

ICANN has refused dotgay LLC’s latest appeal against adverse .gay decisions, and has taken the unusual step of preemptively defending itself against probably inevitable accusations from gay rights groups.

On Monday, the Board Governance Committee threw out dotgay’s Request for Reconsideration, in which the company had asked for a third crack at the Community Priority Evaluation process that could have seen it win .gay without paying at auction.

Today, BGC chair Chris Disspain published a blog post that’s basically a defense against accusations that ICANN is somehow intolerant or ignorant of gay issues.

The post explains the RfR process, explains that the latest decision doesn’t mean there won’t be a .gay or that dotgay won’t win the contention set, winding up:

I want to make clear that the denial of the Request for Reconsideration is not a statement about the validity of dotgay LLC’s application or dotgay LLC’s supporters. The decision means that the BGC did not find that the CPE process for dotgay, LLC’s .GAY application violated any ICANN policies or procedures.

It is ICANN’s responsibility to support the community-developed process and provide equitable treatment to all impacted parties. We understand that this outcome will be disappointing to supporters of the dotgay LLC application. We appreciate the amount of interest that this topic has generated within the ICANN community, and we encourage all interested parties to participate in the multistakeholder process to help shape how future application rounds are defined.

dotgay’s two CPEs, which were evaluated by the Economist Intelligence Unit, failed because the company defined its “community” too broadly, to include people who aren’t gay.

The company says that it’s “common sense” that “gay” is an umbrella term not only for lesbian and bisexual people, but also for people with non-standard gender identities and straight people who support equal rights.

(As an aside, I recently learned that former boxing promoter Kellie Maloney, the UK’s poster girl for transgender issues, disagrees with same-sex couples raising kids and once called for gay pride marches to be banned. I wonder how she fits under this umbrella.)

But the second EIU panel “determined that the applied-for string does not sufficiently identify some members of the applicant’s defined community, in particular transgender, intersex, and ally individuals”.

The CPE application fell apart on that basis. It scored 10 of the available 16 points, four points shy of a winner.

Due to the sensitive nature of this kind of thing, and the fact that dotgay does have a truckload of genuine support from prominent campaigning members of its community, ICANN and the EIU have come in for criticism.

Some of that criticism has implied that ICANN, the EIU, the process or all three are in some way homophobic or at least ignorant.

An article on gay news website The Gayly this week said: “The EIU’s actions contradict all common sense and are being interpreted as the outcome of a hostile environment.”

dotgay encouraged supporters to tweet: “Say NO to unfair & unequal treatment of the gay community at the hands of @TheEIU #Yes2dotgay”.

I’ve seen some tweets from supporters that use stronger language, which I’m guessing is what the BGC is trying to preempt today.

Now that it has exhausted the RfR process without success, expect dotgay to file an Independent Review Process appeal with ICANN, delaying the .gay contention set resolution for a year or more.

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Comments (5)

  1. Jamie Baxter says:

    Despite the CPE Panel Process Document stating “[a]s part of this process, one of the two evaluators assigned to
    assess the same string is asked to verify the letters of support and opposition,” the BGC has acknowledged in their ruling that in fact it has been EIU’s core team members doing the letter verification all along, not the evaluators as written. This in itself if not following the process rules that the EIU wrote, and which ICANN approved.

  2. It seems that ICANN just opened another can of worms. According to this .GAY ICANN BGC determination, ICANN inconsistently states that:

    “The Requester also argues that reconsideration is warranted because…[the] other CPE panel (… evaluating… .HOTEL) awarded the full two points as to the support element. Yet there is no inconsistency between those reports and the Second CPE Report here: neither of the previous reports expressly found that no single organization represents the community. Here, in contrast, the Second CPE Panel explicitly found that no such organization exists with respect to the gay community.” (ICANN BGC, Pg. 27 & 28)

    The CPE rules do not mandate a “single organization [that] represents the community.” There are other alternatives permitted such as having the “majority” of the community addressed on board (for “Support”). CPE offers other alternatives to the panel, such as:

    “Multiple institutions/organizations supporting the
    application, with documented support from institutions/organizations representing a majority of the overall community addressed?” or “support from the majority of the recognized community institution/member organizations.” (CPE Guidelines, Pg. 18)

    Under “Community Establishment” it could be an organization “mainly” dedicated to the community addressed. For example, despite ICANN stating in this BGC determination that .HOTEL did not have an organization “mainly dedicated” to the community, the EIU stated that .HOTEL did in fact have that (the EIU gave .HOTEL full points for that):

    “The [.HOTEL] applicant had documented support from the recognized community member organization” (EIU CPE, Pg.6)

    Another issue is that ICANN claims that the CPE criteria is to have support from a “single such organization recognized by all of the defined community’s members as the representative of the defined community in its entirety.”

    There is no such language in the CPE Guidelines concerning “entirety.” So on one hand, checking out the dictionary definition of “gay” is appropriate for scoring DotGay’s definition but when it comes to the definition of “mainly” ICANN or the EIU does not apply the dictionary definition and interprets it as defined as “in its entirety?” (which is not the dictionary definition of “mainly”).

    If ICANN and the EIU hold “in its entirety” as true (it is not), how can ICANN or the EIU agree and determine that the International Hotel and Restaurant Association (IH&RA) represents all hotels “in their entirety”? How can the International Spa Association (ISA) represent all spas globally in their “entirety”? I do not see the word “entirety” in the AGB or CPE Guidelines as THE requirement.

    According to CPE rules:

    “”Organized” implies that there is at least one entity mainly dedicated to the community, with documented evidence of community activities.” (CPE Guidelines, pg.4)

    “Mainly” dedicated does not mean “in their entirety.” In fact the CPE guidelines do not define “mainly” but leave it to one’s interpretation (i.e “could imply”) that:

    “”Mainly” could imply that the entity administering
    the community may have additional
    roles/functions beyond administering the
    community, but one of the key or primary
    purposes/functions of the entity is to administer a
    community or a community organization.” (pg.4)

    According to any dictionary, the word “mainly” means “at most part” i.e. more than 50%. It does not mean “entirety” i.e. 100%.

    The .HOTEL EIU determination is correct in determining that the International Hotel and Restaurant Association (IH&RA) is an organization that is “mainly” dedicated to the hotel community and its “primary purpose is to administer a community organization” even though it might have other “roles/functions” (in this case also administering the “restaurant” community).

    A reasonable assessment would conclude similarly that ILGA is an organization MAINLY dedicated to the “gay” community and may have other roles (e.g. administering the BTQIA community). If the IHRA (which also represents restaurants) can be an entity mainly dedicated to the hotel community then ILGA is similarly an organization MAINLY dedicated to the gay community (just as “restaurants” were permitted for IHRA, the rest of the BTQIA community should be reasonably be interpreted as falling under “other roles/functions”).

    This is quite a disappointing result and ICANN certainly has opened a can of worms with their inconsistent interpretations of the AGB and CPE rules while making further inconsistent statements that the EIU did not determine that .HOTEL CPE did not have an organization mainly dedicated to the hotel community (while in truth it was awarded the full points and there was such an organization: IHRA).

    CPE is one of the most frustrated, unpredictable experiences in the history of ICANN processes. Community applicants with demonstrable community support have worked diligently for years and years to meet the criteria and gather support. It seems that determinations for those with demonstrable support seem to be a simple coin flop. This lack of transparency, accountability and predictability is beyond frustrating for community applicants with demonstrable support who have relied on the ICANN process and the rules for a fair decision.

    We are biting our nails here waiting for ICANN to come up with the .MUSIC CPE decision, which clearly exceeds all the criteria (Under the CPE rules .MUSIC clearly passes CPE, http://music.us/dotmusic-community-application-passes-cpe-consistent-with-eiu-determinations).

    The .GAY determination is inconsistent and it is unacceptable that ICANN is putting community applicants with demonstrable support under such stress caused by unpredictable and inconsistent results. It seems ICANN and the EIU are comfortable making determinations based imprecise and inconsistent criteria because they do not fear any accountability, repercussions or risk to their credibility or reputation (especially for the Economist, which I regard as a highly respected and reputable institution).

    According to ICANN, “new generic top-level domains (gTLDs) must be introduced in an orderly, timely and predictable way.” Is there anyone that believes this has been accomplished with CPE or that CPE was conducted predictably, fairly and consistently?

    Constantine Roussos
    .MUSIC

  3. Hire Domains says:

    We are not homophobic, it’s just there is no money in community based extension, how will we eat first class?

  4. Acro says:

    Will things change after Chehade’s tenure ends?

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