The Gay Ex-Scout the Supreme Court Let Boy Scouts Exclude Is Now Suing the Pentagon to Protect Trans Scouts

Twenty-six years ago, James Dale lost one of the most consequential LGBTQ+ rights cases of the pre-marriage-equality era. In Boy Scouts of America v. Dale, the Supreme Court ruled 5–4 that the organization’s First Amendment right to “expressive association” let it kick Dale out as an assistant scoutmaster simply for being gay. It was a defeat that shaped how private organizations could discriminate against LGBTQ+ people for the next two decades.

Now Dale is back in federal court, and he’s using the very same precedent for the opposite purpose: to stop the Pentagon from pressuring Scouting America, the successor to Boy Scouts of America, into abandoning policies that protect transgender kids.

A second lawsuit, three weeks after the first paid off

Dale filed his newest complaint on August 3, exclusively reported by the Washington Blade, seeking federal records on how the Department of Defense is enforcing an ongoing “compliance review” of Scouting America. It’s his second lawsuit against the Pentagon this year. The first, a Freedom of Information Act suit demanding a memorandum outlining the DoD’s agreement with Scouting America, worked fast — the Pentagon released the document just three weeks after Dale filed, rather than fight it out in court.

That memo revealed the arrangement at the center of this fight: in February, Defense Secretary Pete Hegseth’s Pentagon struck a deal with Scouting America that Hegseth said would refocus the organization away from diversity initiatives and other policies his department has labeled “woke.” Hegseth threatened to cut off the military’s long-running institutional support for Scouting America — funding, base access, uniformed sponsorship of troops — if the organization didn’t fall in line within six months. That deadline lands this month.

Dale’s attorney, Isaac Park, frames the new lawsuit as an effort to find out exactly what “compliance” the Pentagon is demanding, and specifically whether it extends to Scouting America’s policies on transgender youth participation. Scouting America opened its programs to transgender members starting in 2017, years after it first admitted openly gay youth in 2013 and gay adult leaders in 2015 — reversals that came only after Dale’s case established, in the government’s telling, that the Boy Scouts didn’t have to make those changes if they didn’t want to.

The irony at the center of the case

That’s what makes Dale’s current fight land differently than a typical FOIA dispute. The 2000 ruling was, at the time, a serious setback: it told LGBTQ+ people that a private organization’s associational freedom could outweigh state nondiscrimination law, and it left Dale — by his own account, a well-regarded assistant scoutmaster with no disciplinary history — expelled from an organization he’d been part of since childhood, solely because a newspaper photo identified him as co-president of his college’s lesbian and gay alliance.

Now Dale is arguing that the same constitutional logic cuts against the federal government trying to force Scouting America into a different set of policies from the outside. If the Boy Scouts’ expressive-association rights were strong enough to override state civil rights law and exclude Dale in 2000, the argument goes, they should also be strong enough to prevent the Pentagon from using funding threats to dictate the organization’s internal membership policies today — including whatever it currently allows for transgender scouts.

It’s an unusual position for a plaintiff who has spent much of his adult life as an advocate for LGBTQ+ inclusion, and it reflects something narrower than a simple change of heart. Dale isn’t arguing Boy Scouts of America v. Dale was rightly decided in 2000. He’s arguing that if it’s still good law — and the Supreme Court has never overturned it — then it ought to protect Scouting America’s current, more inclusive membership choices from government coercion just as it once protected the organization’s exclusionary ones.

What happens next

The August lawsuit is a records request, not yet a direct challenge to the Pentagon’s compliance demands — Dale needs to know what the DoD is actually asking for before he can challenge it. But with Hegseth’s six-month compliance deadline expiring this month, the records fight is likely to be the opening move in a larger confrontation over whether Scouting America keeps its current transgender-inclusive policies or rolls them back under federal pressure.

Scouting America has not detailed publicly what, if anything, it has agreed to change. Neither the organization nor the Pentagon responded to requests for comment cited in reporting on the case. What’s clear is that a fight originally framed around removing DEI language and programming has, through Dale’s litigation, become a test of whether a private youth organization’s transgender members will be collateral damage in a broader political dispute over what the military will fund.

For an organization whose relationship with LGBTQ+ people has swung from a Supreme Court-backed right to exclude, to voluntary inclusion, and now to federal pressure to reconsider that inclusion, the next few weeks will say a lot about which version of Scouting America survives.