A federal judge will allow a group of LGBTQ soccer fans to continue pressing their lawsuit against the Chicago Park District for allegedly not doing enough to silence fans of the Mexican national team who leveled homophobic taunts during a 2019 Soldier Field match.
U.S. District Judge Lindsay Jenkins issued an opinion June 22 denying a motion from the Chicago Park District and ASM Global, the stadium management contractor, to dismiss the second amended complaint from four plaintiffs — Jordan Penland, Karl Gerner, Edward R. Burke, and Paul C. Burke — who alleged violation of the Illinois Human Rights Act (IHRA).
The decision signals the men who sued earlier may have corrected the defects from the first amended complaint, which a prior judge had dismissed without prejudice.
The match at issue took place during a Confederation of North, Central America and Caribbean Association Football Gold Cup Final match at Chicago’s lakefront stadium. The men, who wore Team USA jerseys with rainbow numbers, allege other Mexican team fans have chanted “¡eeeh puto!” during games for almost a decade.
“According to the plaintiffs,” Jenkins wrote, “the word ‘puto’ is a vulgar term for a male sex worker and, in this context, ‘is a taunt that intentionally targets, offends and endangers LGBTQ+ patrons based on sexual orientation.’ During previous Gold Cup tournament games, including each Gold Cup match leading up to the 2019 final, Mexico fans have used the chant, despite repeated fines and sanctions against the Mexican Football Federation.”
The fans said in addition to the known history, they directly emailed the park district and ASM to imply their failure to intervene would violate IHRA's promise of “full and equal enjoyment in a place of public accommodation,” according to Jenkins. They said CONCACAF protocol is to first stop the game for a public address announcement, then to suspend the game for up to 10 minutes, while the players are sent off the field and another announcement is issued, and finally to abandon the game.
The email to the city and Park District General Counsel Timothy King also highlighted a conduct code for Soldier Field specifically prohibiting “profane, disruptive or abusive language or gestures, offensive or disorderly conduct” and other disruptive behavior. The fans said they texted concerns during the game to number purportedly identified as a phone number for Soldier Field security, but in response “they received two middle finger emojis from someone who stated that he or she was not Soldier Field security.”
The fans said they heard the chant 28 times during the game; said stadium officials refused to act; and alleged a failure to properly train gameday workers. The complaint said Soldier Field officials have taken protective measures for other types of harassment such as racism, misogyny and religious persecution. The Illinois Department of Human Rights issued findings bolstering the plaintiffs’ position before they filed the initial complaint in state court.
Judge Jenkins noted the plaintiffs' first amended complaint failed to state an IHRA public accommodation claim and noted the improvements in the second amended version, such as specifically citing the duties the law imposes and the defendants’ alleged shortcomings, as well as making connections between stadium and management staff’s actions or inactions and the legal damage they claim to have suffered.
“Given the context of plaintiffs’ rainbow-colored ‘Pride’ jerseys identifying them as members of LGBTQ+ community, fans’ taunts, and stadium officials’ inaction,” Jenkins wrote, “the SAC plausibly alleges that defendants had discriminatory motives.”
In arguing to dismiss the amended complaint, the Park District and AMS sought to jointly invoke the First Amendment protections afforded to a government body while CPD also sought tort immunity. Jenkins said a private business doesn’t become public simply by leasing a taxpayer-funded facility and acknowledged the defendants’ arguments might develop successfully through fact discovery. Regarding immunity, Jenkins said the plaintiffs likely have the better argument because they are pressing civil rights claims, not a tort violation, but again said the Park District and AMS “may wish to renew these objections at summary judgment if they believe them to have merit.”
Jenkins set a status hearing for June 27.
The plaintiffs are represented in the action by attorneys Julie A. Bauer, John E. Drosick, Thomas J. Neuner and Tyree Petty-Williams, of Winston & Strawn, of Chicago.
The defendants are represented by attorneys Christopher Ward, Amanda Hibbler and John FitzGerald, of the Foley & Lardner, of Chicago.