Jennifer Roback Morse

Jennifer Roback Morse of the National Organization for Marriage’s Ruth Institute has been particularly vocal over the past few months, promoting ex-gay therapy and suggesting that young people not have gay friends. In an interview published in Salvo Magazine in September, she was quite candid about the archaic stereotypes about same-sex couples that inform her anti-gay positions:

MORSE: If you look at same-sex couples, both at what they say and their behavior, neither permanence nor sexual exclusivity plays the same significant role. In other words, if you’re in a union that’s intrinsically not procreative, sexual exclusivity is not as important. Once you start thinking like that, you’ll see that everything people offer as reasons why same-sex couples should be “allowed” to get married—all of the reasons are private purposes. Sometimes it’s nothing more than how it will make them feel. It’s not the business of law to make people feel a certain way. When you see that redefining marriage is going to, in fact, redefine the meaning of parenthood, removing biology as the basis for parenthood and replacing it with legal constructions—then you see that there is quite a lot at stake in getting the definition of marriage right.

Morse is arguing that any couple that can not biologically reproduce is incapable of monogamy or life commitments to each other, a characteristic that applies to many straight couples as well. This argument neglects both the important legal protections of marriage and the fact that many same-sex couples raise families. For example, marriage inequality creates many unique challenges for LGBT older adults, especially economic and health inequities because of benefits they do not have access to from their partners.

Later in the interview, Morse defends heterosexism because “heterosexuality is normal in our species” and marriage equality and nondiscrimination protections “wipe out a belief that is actually true.” She is clearly concerned with maintaining a special superior status for heterosexuals, and she will employ any narrow stereotypes and assertions in pursuit of a discriminatory goal that has little to do with “preserving marriage.”

Judge Kimberly Mueller

Monday, a judge ruled that the ex-gay therapists aligned with the Pacific Justice Institute challenging California’s new law (SB 1172) banning the treatment for minors could continue their practice while their lawsuit proceeded. Today, in contrast, a different federal judge, Obama appointee Kimberly J. Mueller, rejected the Liberty Counsel and NARTH’s similar request for an injunction. In her decision, Mueller argued that the ex-gay therapists were not likely to demonstrate that the law infringes on their Constitutional rights to discuss sexual orientation change efforts (SOCE):

Here, plaintiffs have not demonstrated a likelihood of success on the merits of their claim that SB 1172 will subject mental health professionals to discipline if they merely recommend SOCE to minor patients, or discuss it with them, or even present them with literature about SOCE… [I]n contrast, the state’s insistence that the statute bars treatment only, and not the mention of SOCE or a referral to a religious counselor or out-of-state practitioner, is consistent with a fair reading of the statute itself. [...]

Courts reaching the question have found that the provision of healthcare and other forms of treatment is not expressive conduct. Given the weight of the authority on the question and the nature of the record before the court, plaintiff therapists have not shown they are likely to succeed in bearing their burden of showing that the First Amendment applies to SOCE treatment; they have not shown that the treatment, the end product of which is a change of behavior, is expressive conduct entitled to First Amendment protection.

As SOCE therapy is subject to the state’s legitimate control over the professions, SB 1172′s restrictions on therapy do not implicate fundamental rights and are not properly evaluated under strict scrutiny review, but rather under the rational basis test. SB 1172 passes the rational basis test.

Mueller pointed out that a First Amendment claim is no more applicable for minors than it is for practitioners, as they are not impeded from receiving information about SOCE, only the therapy itself. She also found that parents do not have a fundamental or privacy right to choose mental health treatments deemed harmful to minors, noting that SB 1172 does not impose criminal penalties on parents nor prevent them from accessing ex-gay therapy from unlicensed providers. Unlike Judge Shubb, Mueller was more convinced by mainstream medical professionals than the fringe ex-gay therapists:

The findings, recommended practices, and opinions of ten professional associations of mental health experts is no small quantum of information.  Even if all of the studies and reports upon which the California Legislature relied were inconclusive or flawed, SB 1172 still would be a valid legislative enactment… The court need not engage in an exercise of legislative mind reading to find the California Legislature and the state’s Governor could have had a legitimate reason for enacting SB 1172.

The two cases have already diverged and could well be steering toward different conclusions. At the foundation of both is the understanding that shame-based ex-gay therapies and family rejection harms young people. At least one of the judges hearing these cases seems to acknowledge that reality.

Kelley Winters has been an outspoken advocate for GID reform.

A number of ThinkProgress readers have expressed concern over Monday’s widely-shared post, “APA Revises Manual: Being Transgender Is No Longer A Mental Disorder,” about the American Psychiatric Association’s decision to revise the Diagnostic and Statistical Manual of Mental Disorders (DSM-5) to reclassify “Gender Identity Disorder” (GID) as “Gender Dysphoria.” A prominent LGBT scholar called the headline “erroneous,” noting that as long as a designation exists in the DSM, trans identities are still treated as a disorder. One trans advocate pointed out that “Gender Dysphoria” still stigmatizes trans people because there’s no exit clause to the diagnosis. Another activist shared a letter (Ansara, et al) that she and others submitted to the APA criticizing much of its framing around trans identities and providing possible alternatives. One other trans health activist called the article “a bit of a pinkwash” — essentially an attempt to give the APA more credit than it deserves.

As a cisgender (not trans) gay male who edits ThinkProgress’s LGBT vertical, I assume a heightened responsibility to report on trans issues effectively and thoroughly. For all members of the LGBT community, there are many issues that impact us in very personal and unique ways, resulting in many seemingly-conflicting points of view that all have validity. Many of the points submitted by readers have such merit, and the continued discussion seems an apt opportunity to further explore the complexity of anti-trans stigma and the potential impact of the APA’s decision.

For what it’s worth, ThinkProgress was not alone in its framing. Slate similarly reported “Being Transgender Is No Longer a Disorder.” The AP also compared this change to the 1973 removal of homosexuality as a disorder. Other LGBT outlets, like GLAAD, reported that “Gender Identity Disorder” had been removed from the DSM and that the idea trans people are disordered is now antiquated. Indeed, this was the intention behind yesterday’s post: to emphasize the value of the rhetorical change while acknowledging that complications remain.

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FRC envisions a military with soldiers who cry because of marriage equality.

Anti-gay conservatives continue to be outraged that two same-sex weddings took place at West Point this weekend, including one in the academy’s Cadet Chapel. Many though, are now making a false claim that the marriages somehow are a violation of federal law. Along with an image of a crying soldier, Tony Perkins argued in the Family Research Council’s Washington Update Monday that the weddings were inconsistent with the Defense of Marriage Act:

In September of last year, the Pentagon did issue a memo giving military bases the power to decide whether or not to host same-sex “weddings.” Of course, that guidance came from Jeh Johnson, general counsel for the Department of Defense–not Congress. According to Johnson, decisions about military facilities should be made on a “sexual-orientation neutral basis.” And while the “wedding” may have been consistent with Johnson’s memo, the DOD’s general counsel is no substitute for the 427 elected members of Congress who voted to define marriage as the union of a man and woman for the government’s purposes. That means it affects federal employees (which Fulton is) and federal property (where West Point resides). The President may vehemently disagree with the law–but until the Supreme Court overturns it or Congress rejects it, DOMA is still the law of the land.

Elaine Donnelly of the Center for Military Readiness, whose life seems to be dedicated to opposing open service in the military, similarly argued that the marriages violated DOMA:

DONNELLY: Even though Congress made it very clear and it’s in the legislation that they intended the Defense of Marriage Act to be respected and honored on military bases, several times now the administration has allowed various branches of the service to disregard that. This is the most blatant example.

The American Family Association’s Bryan Fischer was more direct with this tweet:

Military breaks the law, allows homosexual “wedding” at West Point. So much for honoring their oath.

All of these interpretations distort was DOMA actually says. The law has two components. The first (Section 2) says that no state shall have to recognize a same-sex marriage performed elsewhere. The second (Section 3) simply states that for any federal regulation or Act of Congress, “the word ‘marriage’ means only a legal union between one man and one woman as husband and wife.” It is an incredible stretch to interpret this language such that a same-sex wedding is somehow illegal merely because the resulting union is not recognized by the federal government. Plenty of activities are legal that are not accounted for in written law, many of which can also take place on government property. There’s no question that DOMA applies to these couples’ marriages, but it’s a very different question to try to apply it to their weddings.

What Perkins, Donnelly, Fischer, Robertson, and others really want is for the military academies to blatantly discriminate against gays and lesbians. If any graduate of the Academy is welcome to hold a wedding in the Cadet Chapel, then Brenda Sue Fulton should not be have been exempted merely because of who she was marrying.

Judge William Shubb

U.S. District Court Judge William Shubb, a George H. W. Bush appointee, ruled Monday that three California therapists can continue to provide harmful ex-gay therapy to minors while their suit challenging the state’s new ban on the treatment proceeds. Shubb argued that claims that ex-gay ministries can increase young people’s risk for depression or suicide are based on “questionable and scientifically incomplete studies” and that the law, “at minimum, regulates conduct that has an incidental effect on speech.”

Lawyers for the state argued that there are no studies whatsoever that validate ex-gay therapy and that without the law, minors have no protection from the possible harm of the shame-based treatment. The National Center for Lesbian Rights’ Shannon Minter expressed concern about the judge’s exception:

MINTER: We are disappointed by the ruling but very pleased that the temporary delay in implementing this important law applies only to the three plaintiffs who brought this lawsuit. The judge stressed that he was willing to issue the ruling in part because it is temporary and applies only to three individuals. We are confident that as the case progresses, it will be clear to the court that this law is fundamentally no different than many other laws that regulate health care professionals to protect patients. That is especially important in this case because the harms to minors are so serious, including suicide and severe depression. Every leading medical and mental health organization in the country has rejected these practices and warned that they are not only completely ineffective, but dangerous. California did the right thing by enacting this law, and we are confident the courts will find that it is not only constitutional, but vitally necessary.

Though the ruling only applies to the three plaintiffs in the Pacific Justice Institute’s (PJI) suit, the judge did invite other therapists to petition for similar relief. PJI President Brad Dacus also invited others to join the complaint as co-plaintiffs. In the suit, the plaintiffs make many dubious claims, including that they’d be “required to discriminate” based on sexual orientation, violate their professional ethics, violate their religious freedom, and violate parents’ rights.

A similar suit by NARTH and the Liberty Counsel has not yet been addressed in court.