The New Gay-Rights Frontier

As the Supreme Court prepares to take its first serious look at the issue of same-sex marriage—with oral arguments set to begin March 26 in back-to-back challenges to California’s Proposition 8 and the Defense of Marriage Act—gay-rights activists and their supporters in the New Jersey Legislature are quietly advancing their fight for LGBT equality on a separate front, with a concerted push to undermine the practice of controversial gay conversion therapy in the state. 

Polls show that public support for legalizing gay marriage has hit an all-time high, with 58 percent of Americans—including a growing number of Republicans—now in favor of granting same-sex couples the rights and benefits enjoyed by their heterosexual counterparts. But even the staunchest of activists recognize that victory for marriage rights in Washington will be but an incremental step on the road to equality for a community that has been consistently denied equal protection under the law. 

Consider that only 18 states and the District of Columbia have laws explicitly allowing homosexual couples to jointly adopt children; and in 29 states it’s still legal for an employer to fire a worker simply because he or she is gay. Meanwhile, efforts to strengthen state anti-bullying laws to include protections for gay and lesbian youth have met stiff resistance from conservative groups in places like Michigan and Arizona, and many private schools and institutions—most notably the Boy Scouts of America—continue to defend anti-gay policies.

Gay rights advocates, including the Southern Poverty Law Center (SPLC), are targeting the practice of conversion therapy on the grounds that by perpetuating the belief that homosexuality is a treatable mental disorder, it helps to legitimize discrimination against LGBT people. Earlier this month, a superior court judge in Jersey City heard preliminary motions in a first-of-its kind consumer-fraud lawsuit filed by the SPLC on behalf of four gay men who say they were conned out of thousands of dollars by two therapists who promised to make them straight. The litigation is part of a one-two punch against conversion therapy in New Jersey that also includes a bill in the state senate that would severely limit how practitioners can market their services.

Two of the defendants are an independent “life coach” named Alan Downing and his sometime employer, Arthur Goldberg—founder of the group Jews Offering New Alternatives for Healing, or JONAH. A disbarred attorney who served 18 months in federal prison in the late 1980s for helping orchestrate a phony bond scheme, Goldberg describes homosexuality as a “false identity,” which he claims he can dislodge using techniques that range from the unconventional to the bizarre. (In one group exercise, clients were reportedly confronted by a human chain of their peers and peppered with anti-gay slurs as they attempted to reach a pair of oranges meant to represent testicles.) When the treatments failed to change their sexual orientation, clients were told it was due to their lack of commitment. “As long as you put in the effort, you’re going to change,” Goldberg allegedly told one plaintiff. 

According to lead attorney Christine Sun of the SPLC, the consumer-fraud case against conversion therapy represents the opening salvo of a grassroots, multistate effort to chip away at LGBT discrimination by subverting the notion that homosexuality is nothing more than a lifestyle choice. “Discrediting the idea that you can change your sexual orientation completely demolishes the number-one justification for denying gay people equal rights,” she says. “If you look at the literature by some of the anti-gay groups, the first reason they have for not allowing a gay couple to be married or not providing employment protections for gay employees, or not taking bullying against gay kids seriously is the idea that being gay is a mental disorder and it’s something that needs to be treated.” 

Homosexuality was removed from the American Psychiatric Association’s list of pathological disorders in 1973—and gay conversion therapy has been discredited or highly criticized by every major U.S. medical, psychiatric, psychological, and professional counseling organization. But for decades, an ideologically motivated fringe industry has quietly carried on the work of trying to “cure” gay men and women. Their services primarily fall into two main categories: one rooted strongly in religious tradition, which encourages participants to “pray the gay away,” and the other centered on nondenominational programs based a hodgepodge of loosely correlated theories that blame homosexuality on faulty parenting or early childhood trauma.

Secular “reparative” therapy came to prominence in the 1990s, when APA dissenter Dr. Charles Socarides and two colleagues—Benjamin Kaufman and Joseph Nicolosi—formed the National Association for the Research and Therapy of Homosexuality (NARTH) in an attempt to provide a scientific foundation for their belief that it’s possible to turn a gay person straight. Despite years of effort, they haven’t had much success. The single-most influential study supporting conversion therapy’s claims was repudiated by its author last year, and the scant evidence that exists of its effectiveness is based primarily on the word of “ex-gays” themselves, almost all of whom admit they still struggle with same-sex attraction. 

According to Troy Stevenson, director of Garden State Equality—New Jersey’s largest LGBT advocacy group—the push to undermine conversion therapy is emerging as a “new frontier” in a fight that has been dominated by a singular focus on legalizing same-sex marriage. “The marriage-equality movement gets a lot of press [because] it’s viewed as the glass ceiling, that once we get that done, we’ve achieved equal rights. But that’s not the truth,” Troy says. “In many ways, these smaller battles are more important because they are less understood.” He points to the history of the women’s rights movement as evidence that full equality for homosexuals will not come with the stroke of a pen or a single Supreme Court decision. “After Roe v. Wade, a lot people declared victory and dropped out of the [women’s rights] movement, and now 40 years later they’re fighting the same battles again,” he says. “This is not something that we want to happen in the LGBT community.”

Garden State Equality has been coordinating with New Jersey lawmakers to advance legislation that would ban conversion therapy for minors under the age of 18. The bill was introduced last fall by Democratic state Senator Ray Lesniak and is modeled on a similar law in California currently being challenged by proponents of conversion therapy. The California measure, which was drafted by state Senator Ted Lieu and signed into law in September by Governor Jerry Brown, was the result of an intense lobbying campaign by gay-rights groups led by the Human Rights Campaign. A federal judge blocked the law in December, before it was set to take effect, and the U.S. Ninth Circuit Court of Appeals will begin hearing oral arguments in two cases challenging its constitutionality on April 17. Plaintiffs include conversion therapists and their patients, who say the law violates their right to free speech.

Lesniak—an evangelical Christian who equates pressuring adolescents to change their sexual orientation with child abuse—says that the free-speech argument doesn’t hold water. 

“There is no scientific basis for this treatment—it’s akin to a chiropractor saying they can cure cancer by manipulating your spine,” he says. “Free speech does not mean anyone licensed to practice therapy can engage in fraudulent speech without being subject to a penalty.”  

Lesniak’s bill passed the Senate Health, Human Services and Senior Citizens Committee on March 18 by a vote of six to one, with two abstentions. It now goes before the full Senate where it will be combined with a companion bill in the House sponsored by Assemblyman Timothy Eustace, an openly gay Democrat. Eustace’s bill still faces consideration by the state assembly, but Lesniak says he is confident the legislation will be on Governor Chris Christie’s desk by May. 

Success in court, however, may prove trickier for the SPLC. JONAH’s defense is being mounted by prominent anti-gay attorney Charles LiMandri, a practiced ideologue who has called homosexuality “destructive and pathological” and has warned of a “potential civil war” if same-sex marriage is legalized. In a motion filed last month, LiMandri—who is president of the Freedom of Conscience Defense Fund and served as a general counsel for the National Organization for Marriage—said the suit against JONAH violates his clients’ constitutional rights to freedom of speech, freedom of religion, and freedom of association. 

New Jersey also has a “learned professional exemption” that limits fraud litigation against doctors, attorneys, and other licensed occupations, as long as they are acting within the recognized boundaries of their profession. However, given the widespread rejection of conversion therapy by nearly every medical and psychological professional body, it’s hard to see how conversion therapists will be able to hide behind the exemption. 

For her part, Sun says she is confident a jury will agree that her clients were swindled but adds that by publicly exposing the “absurdity” of conversion-therapy practices, even a loss in open court is not without its merits. The JONAH case, she says, is part of a “broader campaign against an industry that preys on vulnerable gay people” that includes plans for legal action in other states. Since 2011, the SPLC has been working with organizations like Truth Wins Out, Lambda Legal, and the National Center for Lesbian Rights to undermine conversion therapy outside the courtroom, mostly through attempts to have practitioners tossed from professional associations and remove anti-gay literature from school-district health curriculum. But a victory in New Jersey would do something that none of those efforts can: establish by legal precedent that conversion therapy is indeed a fraud. 

“If we’re successful,” Sun says, “this case will be the death knell of conversion therapy.”

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