THE INTERNATIONAL CENTRE FOR EXPERTISE OF THE
INTERNATIONAL CHAMBER OF COMMERCE

CASE No. EXP/446/ICANN/63

METROPLEX REPUBLICANS OF DALLAS
(USA)
vs/
DOTGAY LLC(USA)This document is an original of the Expert Determination rendered in conformity with theNew gTLD Dispute Resolution Procedure as provided in Module 3 of the gTLD Applicant
Guidebook from ICANN and the ICC Rules for ExpertiseEXP/446/ICANN/63

METROPLEX REPUBLICANS OF DALLAS
vs.
DOTGAY LLC

Expert Determination

1Objector
Metroplex Republicans of Dallas
Mr. Rob Schlein
PO Box 191033
Dallas, TX 75219
USArobschlein@aol.com

Applicantdotgay llc
Mr. Scott Richard Seitz
307 Seventh Avenue, Suite 1807
New York, NY 10001
USASSeitz@spimarketing.com

Expert Panel
Professor Dr. Bernhard Schlink
Humboldt-Universität zu Berlin, Juristische Fakultät
Unter den Linden 6
10099 Berlin
Germany
bernhard.schlink@rz.hu-berlin.de2

Table of Contents

Procedure4

Summary of Parties' Positions

4Findings

5

Decision73

Procedure
1. On 13 March 2013, Metroplex Republicans of Dallas ("Metroplex") filed a Community
Objection against the application by dotgay llc ("dotgay") for the string .GAY. On 10 May
2013, dotgay filed its response. On 7 June 2013, I, Professor Dr. Bernhard Schlink, wasappointed by the Chairman of the Standing Committee of the International Centre forExpertise ("Centre") of the International Chamber of Commerce ("ICC") to proceed with thismatter in accordance with the Rules for Expertise of the ICC ("Rules"), supplemented by theICC Practice Note on the Administration of Cases ("ICC Practice Note") under theAttachment to Module 3 of the gTLD Applicant Guidebook, New gTLD Dispute Resolution
Procedure ("Procedure") of the gTLD Applicant Guidebook ("Guidebook"). On 2 July 2013,the Centre confirmed the full constitution of the Expert Panel and transferred the file to me.
On 20 July 2013, I informed the parties that I had received the file and did not intend to invite
additional submissions. The parties did not submit any further submissions or statements nor
did they request to be granted leave to submit additional submissions.
2. The language of all submissions was English (Procedure Article 5(a)). All communications
by the parties, the Expert Panel and the Centre were submitted electronically (ProcedureArticle 6(a)).
3. The draft Expert Determination was rendered for scrutiny to the Centre on 29 July 2013,
within 45 days after receipt of the files transmitted by the Centre on 2 July 2013.

Summary of Parties' Positions
Objector's Position
4. Metroplex presents itself as an established institution that has an ongoing relationship witha clearly delineated community. It describes itself as a political "grassroots" organization in
Texas that has been in existence for 30 years, that raises public awareness of gay
conservatism and builds political ties to conservative leaders. To demonstrate that it has anongoing relationship with a clearly delineated community, it claims to advance the interests ofthe conservative LGBTQ ("lesbian, gay, bisexual, transgender, and sexuality questioning")
community by promoting monthly dinner meetings, hosting political events, and endorsing
candidates for office in Texas. It further asserts its affiliation, together with six other state andlocal conservative gay groups, with GOProud, a national conservative LGBTQ organisation.
5. Metroplex claims substantial opposition from a significant portion of the conservative
LGBTQ community to which the string .GAY may be targeted. It argues that the conservative
LGBTQ community is a clearly delineated community, having readily identifiable formalboundaries, being formed by LGBTQ people who hold conservative political views and votefor conservative candidates. Such conservative LGBTQ community, it claims, has existed
since the early days of political participation, and is represented in every corner of the world,
numbering between one third and one fourth of all LGBTQ voters.
6. Metroplex also argues that the opposition is substantial and shared by a significant portionof the conservative LGBTQ community. It believes that most conservative LGBTQ votersfeel the way the members of Metroplex feel. It sees itself as a well-recognized, extensivelyinvolved, and actively engaged organization with a diverse membership and a history of4

defending the conservative LGBTQ community by being active in social media andsubmitting editorial pieces to the "Dallas Voice".
7. Metroplex further argues that the strong association between the string .GAY and theconservative LGBTQ community is obvious, because even the applicant, dotgay, sees gay
political organizations as entry points into the gay community, and because the fact that a partof the LGTBQ population is conservative must lead to the conclusion that the string .GAY
will in part be identified with gay conservatives.
8. Metroplex finally argues that the application for the string .GAY creates a likelihood ofmaterial detriment to the rights and interests of a significant portion of the conservative
LGBTQ community. Metroplex points to the operational model for the string .GAY that
includes an authentication system that allows registrants in or shuts them out, and also
includes a community watch that may lead to users being removed or barred. Metroplex
asserts that both the LGBTQ community and the gay agenda are dominated and controlled byliberals. It therefore expects discrimination, in the authentication system and the community
watch, against conservative LGBTQ groups and individuals. While Metroplex cannot becertain of this outcome, it feels that the potential for abuse of the operational model for thestring .GAY is unacceptably high.
Applicant's Position
9. dotgay challenges Metroplex's standing. It does not doubt the existence of a conservative
segment of the LGBTQ community, nor, that Metroplex is a part of it, but it challenges
Metroplex's claim to represent this segment. It asserts that Metroplex is globally neither active
nor known; that the available documentation does not prove, but rather casts doubt on
Metroplex's purported 30-year existence; that there is no evidence of an ongoing relationshipbetween Metroplex and the conservative segment of the LGBTQ community, nor, ofMetroplex having discussed, planned, or organised its objection with that segment.
10. dotgay further argues that the authentication system and the community watch cannot
create any likelihood of material detriment to groups or individuals of the conservative
segment of the LGBTQ community, for several reasons. First, the string .GAY will be
operated in strict political neutrality. Second, its authentication system relies on authentication
partners from all segments of the LGBTQ community and could rely on Metroplex itself as
one of the authentication partners. Third, the community watch's only function is to raise
alarm in cases of hate speech. Finally, an Ombudsman and an appeals mechanism are in place
to deal with complaints as to the political neutrality of the operational model of thestring .GAY.
11. dotgay finally mentions that it has made several attempts to contact Metroplex and to open
a dialogue about its concerns, but that emails were not answered and certified letters werereturned unopened.

Findings
12. The Objection should be dismissed.
13. On the basis of the submitted documents and arguments, Metroplex lacks standing. To
have standing the objector has to be an established institution associated with a clearly5delineated community (Guidebook 3.2.2.4), i.e. with a group that is publicly recognized as acommunity at a local and/or global level and has formal boundaries that enable adetermination of what persons or entities form the community (Guidebook 3.5.4). There is nodisagreement between the parties that the gay or LGBTQ community is a clearly delineatedcommunity. But while the conservative segment, with which Metroplex claims association, isa segment of the clearly delineated gay community, it is not a clearly delineated community inand of itself. That some LGBTQ people hold conservative political views and vote forconservative candidates may bring them into a statistical category, but does not make themconnect, gather, interact, or do anything else together that would constitute a community, or,that would make them publicly visible as one. That people hold a political view or vote for apolitical candidate also does not mean that they do so consistently and stably over time.
People change their political views, and have different views on different issues; and whethera political view is to be characterized as conservative, liberal, or something else is often
debatable. Votes are cast in secret and not always as voters declare they will vote, or havevoted; voters divide their votes within a ticket and swing from election to election. No
LGBTQ person is bound by his or her last political view, or, his or her last vote as a formalboundary.
14. For a community objection to be successful, the whole community need not oppose theapplication; proof of substantial opposition within the community is sufficient (Guidebook3.5.4). Given this, one might consider a different interpretation of Metroplex's objection. In
this interpretation the community, for which Metroplex wanted to express opposition to
dotgay's application for the string .GAY, were not the conservative segment of the LGBTQ
community, but rather the LGBTQ community itself, and the conservative segment would be
the source of substantial opposition within the community. But Metroplex would still lackstanding. It is not an established institution that has an ongoing relationship with the gay
community, i.e. it is not a globally or internationally or nationally recognized institution thatparticipates in the community's activities, membership, and leadership and has a purpose andperforms activities related to the community's benefit (Guidebook 3.2.2). Based on its own
submissions, Metroplex does not have an ongoing relationship with the wider LGBTQ
community; it does not reach out to it, and does not participate in its mechanisms to organize,act, lead, or speak out. Affiliation with six other state and local conservative gay groups does
not constitute an ongoing relationship with the wider LGBTQ community; it is not even a
substantive relationship within the conservative segment that in and of itself is not a clearlydelineated community.
15. Even if Metroplex had standing, its objection would have to be dismissed on the merits.
For an objection to be successful, the objector has to prove that the application creates alikelihood of material detriment to the rights or legitimate interests of a significant portion of
the community to which the string may be explicitly or implicitly targeted (Guidebook 3.5.4).
The application by dotgay for the string .GAY does not create a likelihood of material
detriment to the rights or interests of the conservative segment of the LGBTQ community.
Nothing in the operational model of the string .GAY casts doubt on dotgay's claim that thestring .GAY will be operated in strict political neutrality. In fact, it is in dotgay's social,political, and economic interest to be as encompassing as possible and to embrace theconservative segment of the LGBTQ community as fully as other segments. If an LGBTQ
individual or group of whatever leaning should be discriminated against despite this, theoperational model has, as pointed out in dotgay's application under 20(e), an Ombudsman andan appeals mechanism to rectify the wrong.

6

Decision
For all the above reasons and according to Art. 21(d) of the Procedure, I hereby render thefollowing Expert Determination:
1. Metroplex's objection fails and is dismissed.
2. Applicant dotgay llc prevails.
3. dotgay llc's advance payment of costs shall be refunded by the Centre to dotgay llc.

3 September 2013

Prof. Dr. Bernhard Schlink, Expert7