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dotgay lawyer insists it is gay enough for .gay gTLD

Kevin Murphy, February 6, 2018, 14:25:35 (UTC), Domain Policy

What do Airbnb, the Stonewall riots and the 2016 Orlando nightclub shooting have in common?

They’re all cited in a lengthy, somewhat compelling memo from a Yale law professor in support of dotgay LLC’s argument that it should be allowed to proceed with its .gay gTLD application unopposed by rival applicants.

The document (pdf), written by William Eskridge, who has decades of publications on gay rights under his belt, argues that dotgay’s Community Priority Evaluation and the subsequent review of that evaluation were both flawed.

At the crux of the dispute is whether the word “gay” can also be used to describe people who are transgender, intersex, and “allied” straight — dotgay says it can, but the Economist Intelligence Unit, which carried out the CPE, disagreed.

dotgay scored 10 out of 16 points on its CPE, four shy of a passing grade. An acceptance of dotgay’s definition of the “gay” community could have added 1 to 4 extra points to its score.

The company also lost a point due to an objection from a gay community center, despite otherwise broad support from gay-oriented organizations.

Eskridge spends quite a lot of time on the history of the word “gay”, from Gertrude Stein and Cary Grant using it as a wink-wink code-word in less-tolerant times, via the 1969 Stonewall riots, to today’s use in the media.

The argument gets a bit grisly when it is pointed out that some of the 49 people killed in the 2016 mass shooting at the Pulse nightclub in Orlando, Florida — routinely described as a “gay” club in the media — were either transgender or straight.

My research associates and I read dozens of press and Internet accounts of this then-unprecedented mass assault by a single person on American soil. Almost all of them described Pulse as a “gay bar,” the situs for the gay community. But, like the Stonewall thirty-seven years earlier, Pulse was a “gay bar” and a “gay community” that included lesbians, bisexual men and women, transgender persons, queer persons, and allies, as well as many gay men.

Eskridge argues that EIU erred by applying an overly strict definition of the applied-for string with dotgay, but not with successful community applicants for other strings.

For example, he argues, a manufacturer of facial scrubs would qualify for a “.spa” domain, and Airbnb and the Orient Express train line would qualify for “.hotel” domains under that applicant’s definition of its community, even though it could be argued that they do not fit into the narrow categories of “spas” and “hotels”.

Similarly, a transgender person may not consider themselves “gay” and a straight person certainly would not, but both might feel a part of the broader “gay community” when they get shot at a gay nightclub.

It’s an unpleasant way to frame the argument, but in my view it’s compelling nevertheless.

Eskridge also thinks that dotgay should have picked up an extra point or two in the part of the CPE dealing with community support.

It dropped one point there because the Q Center, a community center for LGBTQ people in Portland, Oregon, sent a letter objecting to the dotgay application (an objection apparently later revoked, then reinstated).

Eskridge spend some time questioning the Q Center’s bona fides as a big-enough organization to warrant costing dotgay a point, noting that it was the only member of a 200-strong umbrella organization, CenterLink, to object. CenterLink itself backed the bid.

He then goes on to cite articles seemingly showing that Q Center was in the midst of some kind of liberal paranoia meltdown — accused of racial insensibility and “transphobia” — and allegations of mismanagement at about the same time as it was objecting to dotgay’s application.

He also insinuates that Q’s base in Portland is suspicious because it’s also where rival applicant Top Level Design is based.

In summary, Eskridge reckons the EIU CPE and FTI Consulting’s subsequent investigation were both flimsy in their research, unfairly applying criteria to .gay that they did not apply to other strings, and that dotgay should have picked up enough points to pass the CPE.

It’s important to remember that this is not a case of ICANN getting decide whether the gTLD .gay gets to exist — it’s going to exist one way or the other — but rather whether the winning registry is selected by auction or not.

If dotgay wins either by getting another CPE or winning the auction then .gay will be restricted to only vetted members of the “gay” community. This could mean less homophobic abuse in .gay domains but probably also less opportunity for self expression.

If it goes to Top Level Design, MMX or Donuts, it will be open to all comers. That could increase cyber-bulling with .gay domains, but would remove barriers to entry to those who would otherwise be excluded from registering a domain.

ICANN has had .gay on hold for years while the dispute over the CPE has worked itself out, and it now has a piece of paper from FTI declaring the result hunky-dory. I doubt there’s any appetite to reopen old wounds.

My feeling is that we’re looking at an auction here.

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Comments (5)

  1. Rubens Kuhl says:

    The comparison with .spa and .hotel serves more to indicate that those applications might not fit the community definition than to back up .gay claims to it. The question then becomes when it’s better to err in a homogenous way or to err less.

  2. Jamie Baxter says:

    The point in all of this is that the EIU does not get to discriminate among applications. If they use one standard to pass applications like .hotel and .spa, they cannot change or raise the bar higher on that standard for another applications like .gay. It is absolutely clear when looking at the facts that this is exactly what happened. The ICANN Board has a responsibility to enforce their non-discrimination policies and address the mistreatment. The latest FTI reports offer nothing to suggest that the issue of discriminatory application of standards or the multiple examples of inconsistent CPE scoring, provided through the multiple reports and expert opinions, have been fully and properly reviewed. It’s time to stop pretending there isn’t an obvious problem here and just address it by correcting .gay’s CPE score so it is consistent with the standard the EIU applied to community applicants that passed CPE.

    • Rubens Kuhl says:

      If they used the wrong standard to pass .hotel and .spa, then it doesn’t justify to increase the number of mistakes. All applications need to pass or fail on their merits, not on “but that other one passed”.

      • Jamie Baxter says:

        Although everyone is welcome to their personal opinion on interpretation of required CPE standards, ICANN has never suggested or commissioned investigations to prove that the EIU used wrong standards to pass .hotel and .spa. Given that fact, the standard established by the EIU for scoring each criteria on applications that passed CPE must be applied in a non-discriminatory manner to all CPEs. That has clearly not happened for .GAY according to the multiple reports, expert opinions and clearly documented analysis and evidence proving otherwise. Why are the facts being ignored? Why was .GAY treated to a different (and much more difficult) standard than those that passed CPE? Why is ICANN seemingly more focused on absolving themselves than they are with addressing the unequal application of standards? I would hope we can agree that everyone should be treated equally and fairly at ICANN, so any violation of ICANN’s non-discrimination policies should be a concern for all.

        • Rubens Kuhl says:

          The same can be said about failing CPE: “The standard established by the EIU for scoring each criteria on applications that failed CPE must be applied in a non-discriminatory manner to all CPEs.” When invoking merits each application can be evaluated on its own, but when invoking non-discrimination, it goes both ways, not only in the direction that suits your preference. Picking things just for convenience and self-benefit is exactly what you are accusing ICANN of, and yet you are doing the same.

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