Why The LGBTQ Discrimination Lawsuit Against YouTube Could Lose

The Rainbow Coalition, a new group of emerging LGBTQ content creators, have filed a federal lawsuit against the YouTube platform and its parent company Google for alleged discrimination in its monetization and distribution practices regarding queer content. Despite their legitimate concerns over YouTube’s lack of market freedom and noble anti-discrimination intentions, it appears their case could face some trouble before having their day in court.

It’s no secret YouTube enforces unethical restrictions with almost absolute impunity, restricting numerous creators and their ability to sustain revenue across the socio-political divides. This lawsuit, however, specifically accuses the platform of having “used their monopoly power over content regulation to selectively apply their rules and restrictions in a manner that allowed them to gain an unfair advantage to profit from their own content to the detriment of its consumers.” They state this exploitation was conducted through “unlawful content regulation, distribution, and monetization practices that stigmatize, restrict, block, demonetize, and financially harm the LGBT Plaintiffs and the greater LGBT Community”. The creators are now seeking class-action status for these grievances.

In their video announcement, the group cites the platform’s censorship as the result of both AI moderation tools and human reviewers which target channels featuring the terms “gay,” “bisexual,” or “transgender” in their tags, titles and the subject matter in their videos. Even if the platform is notorious for wide-spread bipartisan demonetization, enforcement on the specific basis of sexual orientation is still arguably against YouTube’s own policies and the law, especially if it’s compared to videos with straight or heterosexual tags, titles or subjects.

It just depends whether these creators can make the case, find evidence and reach a fair court process. The complainants — which include the likes of GNews! producers Celso Dulay and Chris Knight, the lesbian comedy duo Bria Kam and Chrissy Chambers, Queer Kid Stuff creator Lindsay Amer and transgender vlogger Chase Ross — have each spoken out about YouTube’s treatment of the LGBTQ community since June 2017.

In the past, Dulay and Knight said their video on an LGBTQ holiday was also flagged for “shocking content”, which a Google employee said was flagged because it was specifically a “gay thing” despite being a news show with no sexual material. The decision was eventually reversed upon further questioning. This case echoes similar remarks from Ross who accused the platform of using automatic forms of “age-gating” content through the use of the “Restricted Mode” filter, along with demonetization of videos tagged as inappropriate for advertising despite the term “transgender” being the only varying factor.

“YouTube is engaged in discriminatory, anticompetitive, and unlawful conduct that harms a protected class of persons under California law,” their lawsuit states, filed earlier this week through the federal court system in, as you probably guessed, California. These claims were later acknowledged and contested directly by the platform in several ways. A YouTube spokesperson wrote to The Verge their company “have no notion of sexual orientation or gender identity and our systems do not restrict or demonetize videos based on these factors or the inclusion of terms like ‘gay’ or ‘transgender’.”

In a previous statement from YouTube’s CEO Susan Wojcicki, she denied the platform “automatically demonetize LGBTQ content” because there are “no policies” which say as much, covertly side-stepping the issue of whether it’s enforced in practice. “We work incredibly hard to make sure that when our machines learn something,” she continued, “because a lot of our decisions are made algorithmically — so that our machines are fair. There shouldn’t be any automatic demonetization.”

This, however, is a blatant lie. If decisions to demonetize are made through the AI, searching for material the company predetermines as an offense, the decision is therefore automatic. In turn, the creators aren’t buying these excuses of YouTube as just another mistaken ally. “I don’t feel like people take us seriously and it needs to change,” Ross later told The Verge. “YouTube really needs to start paying attention to this community … I don’t feel like I belong on a platform that I and other LGBTQ+ individuals helped build.”

Chase explains how YouTube’s alleged discrimination works in a video below:

What could hurt the lawsuit from proceeding are optics.

As highlighted in a tweet by Blaire White, a notorious controversy hawk within the LGBTQ community, creators such as Ross, Kam and Chambers could be dismissed on the basis their videos are blatantly sexual, inappropriate and shocking in their approach. Several thumbnails have provocative imagery like being shirtless, sexual positions like missionary and fingering, french kissing, and pretending to suck on lollipops and carrots, titles referencing sucking, squirting, “peens” and among those being tags of “gay”, “bisexual” and “trans” which could be minor when compared to offenses that may violate YouTube policy.

Given the inherent problems with a monopolistic platform like YouTube, ruling over a staggering 73.39% market share on online video content with over 2 billion monthly users, unaccountable praxis could repeat itself if this is the problematic content being presented in front of a judge. At face value, YouTube could try to dismiss the lawsuit on a sexual basis indirectly associated with the flagged material, leaving these creators with an image problem and being continually discriminated if they can’t proceed to a further investigative state.

Not to say there’s no fire behind the smoke. The group’s lawyer, Peter Obstler, later told BuzzFeed News that although Google is supposedly just another capitalist giant free to publish whatever it pleases, the platform operates under a public mission statement declaring they’re committed to “freedom of expression and freedom of opportunity”, which necessitates that it must adhere to anti-discriminatory practice otherwise it’s within breach of contract.“If they want to be a private company,” Obstler quipped, “they should just tell people, ‘we discriminate’.” Instead, YouTube is desperately trying to keep its pro-LGBTQ base and siphon off them too.

“I want them to really realize that, ‘Oh my God, we actually can’t do this anymore,’” Ross concludes. “I want there to be change so that everyone feels equal on this platform. I’ve had comments from people saying, ‘I really want to watch this video, but I’m not 18 and it’s restricted.’ And that hurts. It really hurts. These are the people I’m making content for. This is one of those moments, though, where we need to stand together no matter the personal issues we may have with other YouTubers. This is a much deeper problem than the personal issues we have with each other. This is our entire community. This is not about me, and it’s not about you. It’s about the community.”

Thanks for reading! This article was originally published for TrigTent.com, a bipartisan media platform for political and social commentary, truly diverse viewpoints and facts that don’t kowtow to political correctness.

Bailey Steen is a journalist, graphic designer and film critic residing in the heart of Australia. You can also find his work right here on Medium and publications such as Janks Reviews.

For updates, feel free to follow @atheist_cvnt on his various social media pages on Facebook, Twitter, Instagram or Gab. You can also contact through bsteen85@gmail.com for personal or business reasons.

Stay honest and radical. Cheers, darlings. 💋