Inside the Court Case That Could End So-Called "Conversion Therapy" For Good
As the culture wars over same-sex marriage quickly approach a Supreme Court-mandated détente, the clash over so-called "conversion therapy" rages on. The practice, which purports to change a person's sexual orientation from homosexual to heterosexual, has been alternately decried and lauded by political parties, condemned by the White House, defended by major Republican candidates for president, banned by states across the country and subsidized by the federal government. In April, President Barack Obama brought global attention to the practice with the release of a statement calling it "neither medically nor ethically appropriate."
But a New Jersey court case beginning on Wednesday could be the opening salvo in the final battle over conversion therapy. The first case of its kind, four former clients of an ex-gay conversion therapy provider are contending in Ferguson vs. JONAH that an organization violated New Jersey's Consumer Fraud Act by claiming its services could "cure" their homosexuality.
"It's the first time that this kind of case has been brought," Sam Wolfe, one of the attorneys for the plaintiffs, told Mic. If the case is successful, Wolfe says, it will send a warning that "practicing conversion therapy is not based on science, it's based on lies and deception, and it's a good time for them to get out of the business."
The case — deemed a godsend by its plaintiffs and a "hate crime" by its detractors — is the culmination of decades of debate over one of the most fundamental questions in the battle for gay rights: Is homosexuality a choice?
A legal first: Ferguson vs. JONAH revolves around the practices of Jews Offering New Alternatives for Healing, formerly Jews Offering New Alternatives to Homosexuality, a Jewish organization that offers regimens that purport to change the sexual orientation of individuals who are "struggling with unwanted same-sex sexual attractions." The suit has already made national headlines for a pre-trial decision by Superior Court Judge Peter Bariso, who ruled that the central tenant of conversion therapy — the assertion that homosexuality is a disorder and can be cured — is scientifically discredited, "like the notion that the earth is flat and the sun revolves around it," and a violation of consumer protection laws.
"What we have to do now is actually convince the jury that the defendants in our case told our clients that being gay was a disorder," said Wolfe, head of the LGBT Rights Project at the Southern Poverty Law Center, a nonprofit legal advocacy organization specializing in civil rights litigation that has taken the lead on the case. If the SPLC can prove that fact to a jury, Wolfe says, they've won the case. "We only have to win one claim under the Consumer Fraud Act to win our case, but there are a variety of different misrepresentations that the defendants made to our clients."
According to the complaint filed at the case's inception, customers of JONAH's services typically paid a minimum of $100 for weekly individual counseling sessions and another $60 for group therapy sessions, with some paying as much as $10,000 a year for the services. The lawsuit describes sessions in which unlicensed therapists ordered them to strip naked and touch their genitals while saying negative things about themselves in front of a mirror, group exercises involving the reenactment of childhood sexual abuse and the use of homophobic slurs while the plaintiffs tried to grab a pair of oranges meant to symbolize testicles.
"Stuck in the past": According to every mainstream mental health authority in the United States, JONAH's practices fall so far outside the mainstream as to be unethical, even dangerous. "It's unethical for counselors to be involved in reparative therapy," David Kaplan, chief professional officer and former president of the American Counseling Association, told Mic. "It's not a mental health intervention — it's a religious practice."
Kaplan is such an outspoken critic of conversion therapy that he dislikes even using the word "therapy" to describe the practice. "A lot of us refer to it as 'sexual orientation change efforts.' 'Therapy' connotes a mental health intervention. This is not a mental health intervention. A mental health intervention relates to the diagnosis and treatment of a mental disorder. Homosexuality is not a mental disorder. There's nothing to fix, there's nothing to repair, there's nothing to convert."
Mainstream mental health organizations have held similar views since the American Psychiatric Association declassified homosexuality as a mental disorder in 1973 — although that hasn't prevented conversion therapy enthusiasts from using psychological terminology in literature and therapy sessions. "The more common practice now seems to be essentially blaming the person's mother," said Kaplan. "It's a very psychodynamic approach — the reason they're homosexual is their mother did not breastfeed them the right way, did not nurture them the right way, did not hold them the right way, did not care for them the right way. Which has been totally discredited, by the way."
That neo-Freudian "triadic relationship" of homosexuality — a distant father, an overbearing mother and a sensitive child — was a popular narrative "even 30, 40, 50 years ago," according to Kaplan. "People who conduct sexual orientation change efforts seem to be kinda stuck in the past in lots of different ways."
"Homosexuality is not a mental disorder. There's nothing to fix, there's nothing to repair, there's nothing to convert."
But that's not how conversion therapists see it. Chris Doyle, director of the International Healing Foundation, a group that "works with individuals, families and groups to educate on sexual orientation," believes that the true meaning of conversion therapy has been hijacked by gay-rights activists. "I think it's an absolute hate crime that the SPLC is perpetrating," Doyle told Mic. "To me, it's just completely ridiculous that the trial has even gotten to this stage."
According to Doyle, since the majority of his clients seeking to resolve issues of unwanted same-sex attraction don't believe they're gay, the term "conversion therapy" is a misnomer. "We're not really converting anyone — I call it 'sexual identity affirming therapy.'"
Doyle — who says he has resolved his own issues with same-sex attraction and is "very happily married" with three children — doesn't believe in homosexuality as it is traditionally understood. "To me, 'gay' is a sociopolitical identity," he said. "There's a wealth of scientific information and peer-reviewed literature out there supporting the fact that people can and do experience change and fluidity in sexual orientation. There's hundreds of peer-reviewed research articles in the last hundred years that have shown this."
This is a frequent assertion by proponents of conversion therapy, who point to studies and surveys of various levels of quality conducted over the past century that suggest sexuality might be malleable. In this context, the term "peer-reviewed" typically indicates that the article in question was reviewed by the board of the Journal of Human Sexuality, an in-house publication for the National Association for Research and Therapy of Homosexuality, a conversion therapy organization affiliated with JONAH and the International Healing Foundation. Alternately, the articles are typically submitted to "pay-per-page" publications that publish even the most dubious articles, as long as they are accompanied by a check.
According to Doyle, the only biological component of same-sex attraction is linked to a person's "temperament," which might indicate sensitivity to different environmental and familial factors. "I've worked with between 150 and 200 clients over my six years in therapy," said Doyle, who was licensed to practice counseling last year after earning his online masters' degree from the evangelical Liberty University. "I can't tell you of one client that I worked with that didn't have a very sensitive temperament. This is something that I see, biologically, in my clients."
Kaplan dismisses talk of "temperament" as deliberate obfuscation of the true nature of human sexuality. "I could hook you up to a machine and shock you every time you reached for food," he said. "I could keep you from eating, but what I couldn't do is keep you from getting hungry. You can get people, through aversive methods and fear, to stop doing engaging in a behavior. But you can't change who they are."
"Expert" witnesses: Doyle repeated his opinions on the "myth" of homosexuality in his expert witness report submitted in advance of the trial — right before he was called out by the plaintiffs' legal team for plagiarizing his report. During his deposition, Doyle admitted to copying multiple passages verbatim from the witness report of another would-be expert witness, author James Phelan. Doyle testified that "not only did he not analyze the premises, methods or conclusions of the cited studies, but did not even read them."
As a result, Bariso deemed Doyle unqualified to testify as an expert witness, along with nearly every one of JONAH's other would-be experts. "Each of JONAH's experts proffers the opinion that homosexuality either is a disorder or is not a normal variation of human sexuality," Bariso wrote in his partial summary judgment. "Because the generally accepted scientific theory is that homosexuality is not a mental disorder and not abnormal, these opinions are inadmissible."
Doyle was incensed by the ruling. "The ultra-liberal judge disallowed all of our expert witnesses, except for one, and allowed the other side to have expert witnesses. It's just completely unfair that the deck is stacked against us," he said. Doyle suggests that the SPLC has coached its plaintiffs into committing perjury. "If you look at their descriptions after therapy, and then after they were recruited by the SPLC, their stories dramatically changed," said Doyle. "They've basically been brainwashed to claim that they were harmed. It's just a bunch of crap."
An ever-shrinking movement: Although conversion therapy's supporters have been quick to assert the legitimacy of the practice, or at least the existence of enough scientific ambiguity to allow its continued use, even the man who helped create the modern conversion therapy movement says that it's time to end the practice for good.
"It's hard for the former leaders, because when we come out, understandably, we're hated by both sides," Michael Bussee, co-founder of ex-gay ministry Exodus International, told Mic. "The reaction from the gay community is, 'Well, you guys have blood on your hands that you can never wash off, and there's nothing you can do to undo the harm.' All we can do is try to prevent future harm, which is why we've been very public. We're dedicated to seeing it closed down once and for all."
Bussee co-founded Exodus International in the late 1970s as a way to deal with the perceived conflict between his Christian faith and his own sexuality. "It's basically the story of a bullied, isolated, lonely, confused gay kid who thought that Jesus could change him and make him straight," he said. "I wanted to be normal."
Formed following the APA's decision to remove homosexuality from its list of mental disorders, "Exodus began as a reaction to what the APA had done, because we felt abandoned," said Bussee. "Like, if it's not a mental illness, then what is it? Well, maybe it's a sin problem rather than a psychological one."
Exodus International became the world's largest ex-gay ministry, an umbrella organization that included more than 400 ministries in 19 countries. "We really believed that God was raising up this ministry, and that it was gonna be a world-wide movement — how grandiose is this, right? — and like the Exodus described in the Old Testament, we would lead people out of bondage," said Bussee.
The early days of the ministry weren't focused so much on changing sexual orientation, Bussee says, as much as trying to figure out how to be good Christians while fighting the temptation of homosexual behavior. The tension between those two seemingly irreconcilable goals was enough to tear some of Exodus' early members apart. "One guy, after six months of celibacy, went to a bookstore and had a sexual encounter and felt so guilty about it that he repeatedly slashed his genitals with a razor blade and poured Drano on the wounds," said Bussee.
"One guy, after six months of celibacy, went to a bookstore and had a sexual encounter and felt so guilty about it that he repeatedly slashed his genitals with a razor blade and poured Drano on the wounds."
Bussee eventually left the movement he helped start after falling in love with Gary Cooper, one of Exodus' other early leaders. The pair divorced their respective wives, held a commitment ceremony and lived quiet lives until Cooper tested positive for HIV. "It was shortly after he tested positive that we decided we had to speak up," said Bussee. "His time was limited."
The couple went public in opposition to the Briggs Initiative, a California proposition that would have banned gays, lesbians and supporters of gay rights from teaching, when proponents of the measure cited the existence of Exodus International as proof that gays could be cured. "Gary looked at me and said, 'Can we be silent anymore?' And I said, 'No.'" The measure was defeated.
The beginning of the end? If the plaintiffs in Ferguson vs. JONAH are successful, the impact of the ruling could extend far beyond New Jersey. Currently, only three states and the District of Columbia restrict or ban the use of conversion therapy, but the novel legal approach of labeling conversion therapy a violation of consumer protection laws has a wide applicability.
"We've already seen some ramifications," said Wolfe, noting that Rep. Ted Lieu (D-Calif.) has recently introduced a bill in Congress that would label the sale of conversion therapy as consumer fraud nationwide. "The truth is that being LGBT cannot be and does not need to be cured," said Lieu on the day he introduced the Therapeutic Fraud Prevention Act. "It's a dangerous scam, and the government must act to protect LGBT Americans from fraudsters who take their money and lie to them."
Despite Bariso's partial summary judgment in support of the plaintiffs, proponents of conversion therapy are still hopeful that a jury will see the virtue of the practice. "If you look at the facts of the case, you can definitely see that JONAH is not guilty of what they're saying they're guilty of," said Doyle. "It's a matter of, will the political correctness of our culture win out against the facts?"
"It's a dangerous scam, and the government must act to protect LGBT Americans from fraudsters who take their money and lie to them."
Whatever the court decides, the American public has largely made up its mind about conversion therapy. According to a 2014 YouGov poll, only 8% of Americans believe that conversion therapy works — although according to Kaplan, that's still 8% too many. "You're telling somebody that who they are as a person is not okay," said Kaplan. "Think of the damage that does to your self-esteem, your self-confidence and how you feel about yourself. [Conversion therapy] has led to depression, low self-esteem, suicidal behavior, people getting into marriages when they shouldn't have and destroying entire families."
Kaplan's assertions are backed up by surveys of self-described survivors of the ex-gay movement. According to a poll of conversion therapy participants conducted by Beyond Ex-Gay, an online community for so-called "ex-ex-gays," 92.5% of participants feel that they were harmed in some way by their ex-gay experiences.
But if, at the end of the day, an adult wishes to spend his or her money on an ineffective, dangerous therapy, shouldn't they be allowed to do so? Isn't preventing its purchase the same as criminalizing fortune telling or psychic hotlines?
"That's an argument that we get: freedom of choice, that I should have the right to choose what I want as a consumer," said Kaplan. "Our answer: It very specifically says in the ACA Code of Ethics that, yes we believe in autonomy, we believe in client choice, we believe in shared decision-making, but a client cannot choose an approach that is documented to be harmful. And this has been documented to be harmful."