Here is the memo from ex-gay activist Arthur Goldberg announcing the ex-gay movement coalition’s detailed plan to sue schools, counselors, insurers, doctors, and organizations such as Big Brothers/Big Sisters if they act in ways contrary to ex-gay ideology.
From: PFOX
Date: October 21, 2003 12:40:48 PM EDT
To: PFOX@topica.com
Subject: Ex-Gay lawsuits
Reply-To: pfox_exgays@hotmail.com
I am delighted to report that the ex-gay movement now has a “legal offense/defense arm” which wishes to work closely with each of our member organizations. The attorneys are eager to find and to litigate on behalf of individual clients (or class actions on behalf of groups) a series of legal cases, anywhere within the U.S.A., to challenge the notion that people are born gay and, further, to gain access for our message that a healing strategy exists for those with unwanted same-sex attractions. In each case, we need to show the harm caused and to identify an appropriate defendant(s).
To help provide some ideas for each of you to consider, the attorneys are looking for fact patterns where a patient’s right to treatment may have been violated, or equal access for the “ex-gay” message has been
denied, or tort cases where a physical or emotional harm occurred to a client because of the fraudulent message that people are born that way.
Some examples of such fact patterns may include:
- HMO Discrimination — client of therapist is denied insurance coverage for reparative therapy when same insurance company would cover gay affirmative therapy
- Emotional and Physical Harm — individual receives hepatitis C, HIV, or other ailments because school counselors, psychologists etc. provide message that they should engage in gay affirmative sex. (Of course, if someone died, their estate or legal guardians may be an appropriate plaintiff).
- Emotional and Physical Harm — Sue gay or porn magazines where message delivered about wonders of gay affirmative sex and an individual can be shown to have relied on such advice.
- Emotional and Physical Harm — person undergoes sex reassignment surgery because of gay affirmative messages and subsequently regrets such action because of later acquired knowledge that reparative healing strategy for gender identity deficit existed and this alternative was not provided or actively discouraged as an option to consider.
- Endangerment of Minors — cases where inner city at risk youth were improperly advised to engage in gay sex and suicide or lesser emotional and physicial harm occurred.
- Endangerment of Minors — Sex education classes where advice given that anal sex is safe for receptive partner as long as condom is in use and individual contracted any one of the innumerable illness which are directly proximate to such activity.
- Equal Access Denied — equal protection of the law cases where gay affirmative message is provided without corresponding gender affirming message being given equal time
- Endangerment of Minors — actions on behalf of children who are placed with two mommies or two daddies (or a single placement) when a mother and father placement was available.
- Undue Economic Burden — Where burden is placed on private business to provide domestic partnership benefits.
- Endangerment of Minors — Inappropriate mentoring (gay affirmative message) cases in Big Brother/Big Sister programs where specific harm to an individual occurred.
- Equal Access — Public School or other governmental environments where gender affirming process message is shut out and gay affirmative message is exclusively provided
The above are only illustrative examples. If someone has an idea for a case or an issue they feel may be appropriate, please do not hesitate to contact me, either by phone or email. Initially I am willing to serve as a liason to the attorneys. It is important to note that they will be working pro bono on these cases.
Best regards,
Arthur at jonahhelp@aol.com
PFOX — Parents and Friends of Ex-Gays & Gays
Box 561, Fort Belvoir VA 22060
703-360-2225
pfox_exgays@hotmail.com
www.pfox.org
There seems to be a confusion here between gender typical and same gender attraction. It is not clear, to me at least, that being gender atypical equates to gay or lesbian. In fact, there seem more than enough masculine gay men and feminine lesbians to make this equation ludicrous. Wonder if they will ever take anyone to court. Or just pressure school boards to stay away from gay topics.
Under this chain of reasoning, could a battered wife sue for not being told the risks hetero-married women run of physical violence sue? Could someone who divorces sue? It seems this sort of logic runs both ways.
This type of legal harassment can go both ways. Would anti-/ex-gay withstand the same type criticism? What about the many people who have suffered from anti-gay and ex-gay treatments? What about the failed marriages that have been based on ex-gay?
The pointless lawsuits PFOX proposes may provide PFOX some much needed publicity (Fox “News”, am radio, etc.), but I think PFOX will look pretty silly.
In Besen’s book he actually advocates the same strategy, but in reverse, suing “ex-gay” ministries for endangering clients, etc.
I am equally outraged and amused by this “strategy.” First, the outrage: arguing that gay magazines and other cultural media must present “ex-gay” arguments is a blatent violation of the First Amendment, and if enforced, would require “Christian” magazines to present anti-Christian messsages as well. Not to mention linking “diseases” and sexual acts to being gay – being gay does not require the performance of any sexual act, and I know of no school counselor who would encourage young people to have sex of any kind.
On the amused side, there is a part of me that says “bring it on” – there is no way the “ex-gay” arguments could hold up in a court of law – therer is ample evidence of the biological basis of homosexuality, and nearly zero evidence that “ex-gay” programs have any effect at all. Can you imagine the sight of hundreds of “ex-ex-gays” who could be brought into court to attest to the lack of change? Not to mention getting the spokespeople for the leading medical/psychological and social work disciplines to describe and explain their gay-affirming positions. It doesn’t matter if some people claim to change – if the wealth of the evidence shows that gays cannot change and that attempts to do so are harmful, then any counselor, etc. can be expected to provide gay-affirming messages.
Count me in the “bring it on” camp. Let’s see where their nasty litigiousnes gets ’em.
I’m merely a second year law student, but here are my impressions about these legal claims, following 1L Torts, etc.
HMO discrimination– I’m not very familiar with health insurance claims like this, but insurers typically get a lot of latitude in determining what they do or don’t cover. If someone is having anxiety about his sexual orientation, and his policy would cover counseling, then the HMO will probably provide a qualified counselor. I suppose the ex-gay movement will attack any determination that their ex-gay “counselors” are not qualified, but I can’t see this succeeding. There is a compelling public interest in maintaining high standards for professional qualification.
Emotional Harm from school counselors, etc.– This is essentially a negligence claim, in which the plaintiff would have to show that the advisor had a duty to prevent the plaintiff from contractng disease, that the advisor breached this duty by acting unreasonably, that the plaintiff suffered harm, and there is a direct causal connection between the breach and the harm. I imagine a number of lawyers would love to defend this case, because it would be so easy to show that the advisor acted reasonably (considering how harmful anti-gay advice can be, and how advice to practice safe sex is a reasonable way to reduce the potential exposure to disease), and to show an intervening cause (plaintiff’s own free will decision to engage in sex) that would destroy the causal connection.
Porn Magazine claim– No duty.
Sex reassignment surgery– This is actually really interesting, since the majority (not all, of course) of transgendered people identify as straight, post transition. And the hypotheitcal plaintiff is upset because he or she was told it’s ok to be gay?
A few more points… I can’t really speak about the equal protection or equal access issues, since I’m only in Con Law 1. However, I do know that for the most part, discrimination by state actors is perfectly fine if they have any reasonable policy to support the discrimination (in cases where the discrimination affects certain groups, the policy has to be varying degrees of ‘compelling’, but I don’t think it would apply to ex-gays because gays don’t usually get heightened protection).
Undue economic burden– this is a cause of action? The state has a LOT of leeway in burdening private property interests.
Again, I’m only a student and not a lawyer, but I just don’t see any strong cases suggested by the hypothetical fact patterns here. In fact, if I were representing a defendant in one of these cases, I would immediately file Rule 11 motions, because there is no basis in the law for some of these claims, and the lawsuits are being waged for the improper purpose of publicity. It’s insane.
Thanks for your analysis Keira – as to your first point – I actually work for a leading health care accreditation organization (we have voluntary programs for health plans), and we require, as part of our standards, that all practitioners are credentialed by a health plan before being part of their panel of providers. We don’t set the criteria that a health plan uses (e.g., an urban health plan may want all physicians to be board-certified, while a rural one can’t set that standard, because of the small number of doctors in their service area), but we do require that all health plans verify the education and training that their providers say they have received. As many of the “ex-gay” counselors are untrained (often they are simply “graduates” of the same program they work for), they likely would not pass muster on those grounds for most health plans.
And, indeed many “reparative therapists” are not accepted by the American Psychological and Psychiatric Associations.
Hey, Fred Phelps threatens to sue, too. Ignore them and see if they sue.