03/26/2014 02:47 pm ET Updated Feb 02, 2016

Anti-Gay Disrimination: Federal Judge Wrong in Walters Case

See if you agree with me that the photos in the slideshow below plainly show that the San Diego Police Department discriminated against Will Walters, a gay man, by arresting him for nudity at the 2011 San Diego LGBT Pride festival -- yet looking on blithely at nearly the entirety of women's exposed buttocks at the Old Mission Bay Athletic Club's annual Over the Line Tournament (OTL).

Looking at this brief slideshow below, anyone can see how discrimination could have been perpetrated at 2011's San Diego LGBT Pride festival -- anyone that is, but U.S. District Court Judge Cathy Ann Bencivengo.

After having previously denied the same motions for dismissal when they were presented individually, Judge Bencivengo recently granted summary dismissal of Walters' suit against the police, which among other violations, alleged that officers had deprived him of his 14th Amendment right to equal enforcement of the law.

The onlooking officers with folded arms in the OTL photos above show women in very skimpy, very revealing swimsuits along with cops who, because they did not arrest the women, must have been thinking something along the lines of "No sir, nothing wrong here... Nothin' uh-tall."

The same year those photos were taken, officers took a look at Will Walters' more modest leather gladiator kilt and said "You're nude! And you're going to jail."

So what was different about the latter situation involving a gay man versus the presumably straight women? What was different about Will Walters that made officers arrest him for nudity? Let's look at the situations as objectively and analytically as possible.

No one can dispute the following differences between the Over The Line beach beauties as compared to Will Walters:

  • Kilt-wearing Will Walters is a male; the scantily clad women are just that: women.
  • Walters was arrested at the 2011 San Diego LGBT Pride festival, a gay event. Not arrested, the scantily clad women in the slideshow were at a non-gay, (hetero)sexually charged event, the main attractions of which, as every San Diegan knows, are women in revealing swimsuits.
  • Walters is gay. The sexual-orientations of the women is unestablished for purposes of this case.
  • Walters was wearing two garments over his lower body: underwear and a kilt. The women each appear only to be wearing one garment on their lower bodies: either a thong or a bikini bottom.
  • The thickness of Walters' kilt's side strap is thicker than the side lacing of all of the women's swimsuits, thus revealing proportionally less of his thighs than are the swimsuits revealing of the women's thighs.
  • Will Walters was arrested for wearing his leather kilt at Gay Pride; the women were not arrested for wearing their more revealing swimsuits to the primarily straight, Over The Line tournament.

Add to these differences the facts that the women in the slideshow fit the contemporary mold of "sexy" and attractive to heterosexual males, and that presumably (as is the case with most if not all police departments in the U.S.) the San Diego Police Department is predominately heterosexual and male; perhaps it should not be surprising that, as one former San Diego public safety officer noted, "Yeah, well, we have a tradition of laxer enforcement at Over The Line."

If that's not discrimination, I don't know what is. And if I don't know what discrimination is, that would make two of us; because, apparently, Judge Cathy Ann Bencivengo has no conception of what discrimination is -- at least not against LGBT Americans.

Last year, I agreed to help Will Walters get the word out about the nonprofit he was then launching. Now, his organization, FreeWillUSA, his is helping to take educational talks around the country and assembling national speakers to educate Americans about the rights guaranteed to them by the U.S. Constitution.

I have been inspired by this young man's desire to turn a negative experience into a positive one. Will Walters will soon announce whether he will appeal this judge's stunningly wrongheaded decision to deny him his day in court to reclaim his civil rights.

I hope he does appeal; and I hope the 9th Circuit Court of Appeals will grant him that day in court, which he and any American who has been denied a right as basic as the right to equal enforcement of the law deserves.

It's all too tempting and too easy to dismiss this case as being about a leather kilt. But what it's really about is the fundamental concept of equal justice and equal enforcement of the law. If you care at all about equality and fairness, this case is more about you than first glance might suggest.

Discrimination Plain as Day?