Gay Passenger Files DOT Complaint Against Saudia — Interesting!

There’s no denying that many of the human rights policies/laws in the Middle East are appalling. While I’m of course vehemently opposed to many of these policies, I also know they won’t change overnight, and that ultimately these aren’t airline policies, but rather government policies based on religion.

I have lots of gay friends living happy lives in the Middle East working for Emirates and Etihad. While of course they’re not happy about the laws, the reality of living in cities like Dubai is quite different than the “letter of the law,” if you will.

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Of course that’s Dubai, which is fairly progressive within the region, especially in comparison to places like Saudi Arabia. Which brings us to an interesting complaint filed by a lesbian against Saudia with the Department of Transportation. While the complaint is 15 pages, it’s a quick read, so I’d suggest checking it out.

Here’s the basis of the passenger’s complaint, after she tried to book a ticket from New York to Manila on Saudia:

On April 10, 2015, she spoke to a Saudi Arabian Airlines representative by calling 1-800-472-8342. She advised the airline representative that she was interested in booking a flight on Saudi Arabian Airlines from New York’s JFK airport to Manila, Philippines. This flight has an approximately 10-hour layover in Riyadh, Saudi Arabia.

Complainant advised the representative that she is openly gay, and that she desires to travel with her partner.

The airline representative informed complainant that she could experience difficulties if she were to hold hands with her partner either on the plane or at the airport. The airline representative advised her to conceal the fact that she is gay.

To summarize, the basis of her complaint isn’t the law in Saudi Arabia as such, but rather that Saudia is selling tickets in the US market, and therefore the airline has to comply with some US laws. Specifically, per the complaint:

The Secretary’s paramount and overriding responsibility is to ensure the safety and security of passengers in air commerce. 49 U.S.C. § 40101(a)(1).

Pursuant to 49 U.S.C. § 40127(a), a foreign air carrier “may not subject a person in air transportation to discrimination on the basis of race, color, national origin, religion, sex, or ancestry.”

An air carrier is prohibited by 49 U.S.C. § 41310(a) from subjecting a person “to unreasonable discrimination” in foreign air Third party complaint 7 transportation. The provisions of 49 U.S. C. § 41310(a) prohibit airlines from engaging in non-economic forms of discrimination against individuals. This provision was relied upon by the Secretary in ordering the cessation of discriminatory conduct against Arab passengers in the aftermath of 9/11. See Order Denying Motion of American Airlines to Dismiss, Docket OST-2003-15046, at pp. 2-3.

Pursuant to 49 U.S.C. § 41712(a), the Secretary may bring action against a foreign air carrier for engaging in an “unfair or deceptive practice or an unfair method of competition in air transportation.”

Basically she’s suggesting that Saudia needs to provide assurance that transit passengers from the United States will not be subjected to any form of “detention, harassment, coercion, or intimidation due to their sexual orientation while waiting for their connecting flights in the Riyadh or Jeddah airport transit areas,” and that if they can’t do that, Saudia’s permit to fly to the US should be revoked:

Saudi Arabian Airlines, and/or the Saudi Arabian authorities, must be required to provide assurances that transit passengers from the United States will not be subjected to any form of detention, harassment, coercion, or intimidation due to their sexual orientation while waiting for their connecting flights in the Riyadh or Jeddah airport transit areas. Saudi Arabian Airlines, and/or the Saudi Arabian authorities, must also provide assurances that LGBT passengers will not be subject to any form of intimidation or harassment while on board any Saudi Arabian Airlines flight from the United States.

In the event the Saudi Arabian Airlines and/or the Saudi Arabian authorities are unable to provide such assurances, the Secretary must nonetheless fulfill his paramount statutory responsibility to ensure the safety and security of all air passengers. 49 U.S.C. § 40101(a)(1). In such event, the Secretary must revoke the permit granted to the Saudi Arabian Airlines to carry passengers from airports in the United States. 49 U.S.C. § 41304(a)

Let me start by saying that I’m not a lawyer (d’oh!). While I’d like to think there’s some legal merit to this case, I just don’t see any:

• The complaint cites 49 U.S.C. § 40127(a), whereby a foreign air carrier “may not subject a person in air transportation to discrimination on the basis of race, color, national origin, religion, sex, or ancestry” — best I can tell, orientation isn’t a protected class here. Hell, there are states in the US which allow discrimination based on orientation, so…
• Ridiculous laws in Saudi Arabia aren’t limited to gays. The passenger is concerned that she’ll be in trouble over showing affection to her partner, though PDA is frowned upon in Saudi Arabia, gay or straight. Straight guys have been arrested for kissing women in public.
• Ironically enough, if anything, public same sex hand holding is more acceptable in the Middle East than opposite sex hand holding.

Bottom line

Again, I’m not a lawyer, so I’m curious if someone with a better understanding of the law has a different interpretation than I do. If sexual orientation were actually a federally protected “class” and this applied to airlines operating flights to/from the US, then I’d be curious to see how a case like this turns out.

What do you make of this DOT complaint against Saudia?