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Tuesday, January 31, 2017

The Boy Scouts and Avoiding Lawsuit Risk

The Boy Scouts of America recently announced it will allow transgender children (i.e., biological girls) into the Cub Scouts and Boy Scouts.

The policy change comes days after reports that a New Jersey mother of an eight year old girl, identifying as male and recently kicked out of a Cub Scout pack, planned a civil rights complaint with New Jersey authorities. Not even a civil lawsuit, although there's no telling what has happened away from the glare of media cameras.

I counsel clients on avoiding risk and weighing risk in various situations. Part of that process involves asking questions, like: "How do you act, to minimize the risk of a false accusation?"

You cannot control the conduct or intent of others, but you can control your own conduct, your intent, and the situations you put yourself in. I believe that, and it's unfortunate in this world, but innocence is not enough.

With that in mind, here is how I see the Boy Scouts' situation.

When a girl joins and participates with the Boy Scout pack, the boys, the scoutmasters (often parents of the boys in the pack) and the organization are all at risk of a false accusation -- from a female.

In the current politically charged climate, for practical purposes, female accusations are accorded greater weight, at least in the court of public affairs. Allegations may not hold water and false accusers may even be prosecuted, but targets of accusations don't have a ready remedy to restore their reputations. (Note the qualifications and phrases set off by commas, before you misinterpret my writing.)

The Boy Scouts' new policy -- call it appeasement, call it compromise -- may endanger all of its participants in a misguided strategy prioritizing the seeking of the approval of opponents, over duties to its members. The effect is to give no resistance to outside challenges which represent a crude, if not depraved, indifference to the risk assumed to any Scout participant, a risk assumed by the mere act of being involved with the Scouts. Sadly, making participation in the Scouts a risky proposition, one in which participants (even, and especially, chidren) risk legal and reputational consequences, might be the unstated but intended consequence.

The organization could have elected to show a spine, to prepare for and engage in litigation. Now, by trying to avoid confrontation, it may well weaken its standing and support among its members. That in turn will almost assuredly weaken its ability to withstand the next legal threat, which its appeasement today will only invite.

After all, weakness is provocative.

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