Whether gender attraction can be changed is the subject of expert testimony in a New Jersey trial. Conversion therapy — a controversial practice that promises to help gay men and lesbians overcome unwanted same-sex attraction — is at the core of a lawsuit filed by the Southern Poverty Law Center (SPLC) against an organization called Jews Offering New Alternatives for Healing (JONAH). The lawsuit contends that conversion therapy amounts to consumer fraud.
Perspectives on Conversion Therapy
Conversion therapy, sometimes known as reparative therapy, is intended to change an individual’s sexual identity or orientation. About 70 organizations in 20 states offer conversion therapy.
Arthur Goldberg, co-executive director of JONAH, contends that “homosexuality is a learned behavior which can be unlearned, and that healing is a lifelong process.” Taking the position that same-sex attraction is not a disease to be cured, the American Psychiatric Association (APA) and other organizations representing mental health professionals say that conversion therapy is ineffective and can be harmful to patients.
Three states and the District of Columbia prohibit conversion therapy programs from furnishing services to minors. With the support of the White House, federal legislation has been proposed that would ban licensed therapists in for-profit institutions from offering conversion therapy. The ban would not affect nonprofit counseling offered by religious groups.
The SPLC Lawsuit
The SPLC brought its lawsuit on behalf of six plaintiffs. The lawsuit, based on New Jersey’s Consumer Fraud Act, alleges that JONAH violated the Act’s prohibition of deceptive and fraudulent business practices by misrepresenting that same-sex attraction is a mental disorder and by falsely claiming that conversion therapy effectively changes sexual orientation. The plaintiffs seek restitution of the fees they paid to JONAH and compensation for the costs they incurred for therapy to recover from the emotional distress that JONAH allegedly inflicted upon them.
The Freedom of Conscience Defense Fund (FCDF) is defending JONAH. The FCDF takes the position that adults have the right to give greater weight to their religious faith than they give to their “putative sexual identity.” The FCDF contends that individuals who want to rid themselves of sexual desires that conflict with their faith are entitled to seek help from licensed professionals who share their beliefs.
The Court’s Rulings on Expert Testimony
Each side has attempted to bar the testimony of expert witnesses offered by the other side. Those efforts met with only partial success. The court denied the JONAH’s motion to prohibit three SPLC witnesses from giving any expert testimony.
The SPLC asked the court to prohibit JONAH’s expert witnesses from testifying that homosexuality is a “clinical condition” or disorder rather than a normal variant of human sexuality, a position that has been rejected by the APA and every major national and international professional organization in the field of psychiatry. JONAH countered that its experts based their opinions upon professional experience and valid methodologies and that the APA (and similar organizations) are advancing a political, rather than a scientific, opinion.
The court excluded proposed testimony concerning Orthodox Judaism’s view of homosexuality and the alleged harm that homosexuality does to society on the ground that those opinions had no relevance to the claims of fraud that the plaintiffs assert. The court also prohibited the experts from expressing the opinion that the plaintiffs’ claims to have been deceived are untruthful since the credibility of witnesses is for the jury, not the experts, to decide.
New Jersey follows the Frye standard, which admits expert testimony only if it is based on generally accepted science. The court declined to accept JONAH’s argument that the APA and other professional organizations all abdicated their responsibility to base their conclusions on scientific research rather than political correctness. The court concluded that the “overwhelming weight of scientific authority concludes that homosexuality is not a disorder or abnormal.” It therefore barred the experts from testifying that homosexuality is a mental disorder and not a normal variant of human sexuality. Since the proposed expert testimony about the benefits of conversion therapy was premised on the belief that homosexuality is a disorder or abnormal, the court also disallowed that testimony.
The Issues at Trial
While the scientific community agrees that homosexuality is normal, it has not produced a shared understanding of why some people are gay and others are straight. The extent to which people voluntarily or unconsciously change their sexual orientation is also controversial, given that some people experience a “fluidity” in their sexual identity over their lifetime. According to a journalist for The Atlantic who wrote about the SPLC suit, those gaps in expert knowledge have contributed to the growth of conversion therapy and may be the key to the trial’s outcome.
The court gave the SPLC a partial victory before the trial started by granting summary judgment in its favor on its claim that JONAH’s advertising violated the Consumer Fraud Act by misrepresenting that homosexuality is a disease or disorder and by advertising its “success rate” when it made no effort to track client outcomes. With the help of their experts, the plaintiffs will still need to prove that those misrepresentations caused them harm in order to prevail. The case is expected to go to the jury before the end of June.
