There is a lot of rainbow sparkle in this year’s Olympics. At last count, almost 180 of this year’s Olympic participants are out LGBTQ individuals, likely the largest number in history (and triple the number in Rio). There’s Megan Rapinoe, everyone’s favorite purple-haired crush; Brittney Griner, a longtime WNBA legend; nonbinary skateboarder Alana Smith; and Laurel Hubbard, one of the first transgender individuals to qualify for the Olympics. If Team LGBTQ were to compete as a team, it would have boasted at least 19 medals by the time this piece went to press, six of them gold.
And then there’s my favorite rainbow moment: Olympic gold medalist Tom Daley, sitting casually in the stands at the springboard event, knitting away, creating a sweater for his dog in lavender and pink. These were the crafting needles that broke the Internet — as tweet after tweet gushed, describing the gay father as “the perfect man” and “a national treasure” over the seemingly unimaginable association of an old-school feminine hobby with the diving prowess of male youth. After winning his medal, Daley proclaimed, “I feel incredibly proud to say that I am a gay man and also an Olympic champion.”
Considering these historic triumphs, knitting needles and all, it’s easy to presume that the Olympic Games are fashioned in the same spirit of fair play, inclusion, and equality that its newly drafted oath mandates from participants. Yet when it comes to LGBTQ equality, the International Olympic Committee and its American counterpart, the US Olympic Committee, still have amends to make.
In 1982, another out and proud gay man named Tom Waddell — who was also a paratrooper, infectious disease physician, and former Olympic decathlete — founded what he called the Gay Olympics in San Francisco. Waddell, who had traveled to Selma, Ala., to work on racial equality, created the games with a deep commitment to inclusivity. Anyone could compete — gay or straight, old or young, athlete or non-athlete. Waddell’s mission was to educate the public about the diversity and strength of the gay movement and, as the Gay Olympics charter states, “to bring people together for greater understanding and physical fitness and not for the purpose of establishing one group being better than any other.”
This was at a time when AIDS had begun to ravage the gay community and when both American culture and courts were deeply opposed to gay equality. The mere association of the word “Olympics” with “gay” prompted the USOC to sue to stop Waddell’s use of the trademarked term “Olympics” in his naming of his games.
The case would become about something much deeper: Whether the courts would grant the USOC the power to quash any association with America’s gay community.
The would-be Gay Olympics turned out to be one of the few organizations that the USOC prohibited from using “Olympics” in its name. Consider some of the other groups that were allowed to use it: International Police Olympics; Firemen’s Olympics; Wrist-Wrestling Olympics; Crab-Cooking Olympics; Dog Olympics; Nude Olympics; Rat Olympics; Wacky Olympics; Xerox Olympics; Alcoholic Olympics.
The USOC’s prohibition on the name Gay Olympics was upheld in the Ninth Circuit, even though, as Judge Alex Kozinski wrote in his dissent, “It seems that the USOC is using its control over the term Olympic to promote the very image of homosexuals that [Waddell] seeks to combat: handicapped, juniors, police, Explorers, even dogs are allowed to carry the Olympic torch, but homosexuals are not.”
By the second time the Gay Games were held, in 1986, Waddell had appealed to the Supreme Court. Waddell won a gold in javelin at those games, but in court, he lost again. It’s not terribly surprising: The same year, the Supreme Court upheld sodomy laws in the landmark case of Bowers v. Hardwick, which essentially equated homosexuality with criminality.
Within a year of losing his case against the USOC, Waddell, sick with an AIDS-related illness, contended with another battle: The lawyers for the USOC filed a lien on his house, seeking payment for their legal fees. Only after Waddell’s death in 1987 at the age of 49 did the USOC lawyers, led by Vaughn Walker, dissolve the lien. (In a striking postscript, Walker, formerly a closeted gay man, would become the federal judge who in 2010 would overturn California’s ban on same-sex marriage).
As a queer woman and a trademark professor, I teach the Waddell case. Every year when I do, I am reminded of the stakes for LGBTQ people. While the questions the case raises turn on narrow issues of trademark law, they are also about how we choose to describe ourselves. The desire to trademark something is the desire to brand, to proclaim, to come out of the closet of hidden innuendo, and to claim a property right in one’s identity. The power to name oneself is huge, but the power to prevent someone from naming themselves is even greater.
In the case of Tom Waddell, the USOC took one man’s movement and transformed it into one of the most notorious cases of trademark exclusion in history.
Waddell’s legacy continues. The Gay Games are still held today, and they are still committed to total inclusion. Perhaps in stark contrast, the Olympics faces questions of how far it will go to exclude some, particularly trans athletes, from competing. Looking at the photographs of LGBTQ athletes in all their glory, I could not help thinking of the meaning of this moment — to have so many openly queer athletes at a mainstream event, even as trans rights in sports remain a point of contention.
There have been many teachable moments in this year’s Olympics. In the last few days, the world witnessed two athletes deciding to share a gold medal; the rise of a daughter of Hmong refugees; an Indigenous Hawaiian bringing home gold; the undeniable courage of a Black woman putting her mental health first. But perhaps even more memorable would be an apology by the USOC to Tom Waddell’s family, acknowledging that, with Waddell and his inclusive games, they erred on the wrong side of history.
Sonia K. Katyal is associate dean for faculty research at the University of California, Berkeley.