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Prop 8 Trial Liveblog Friday Afternoon 1 (36)

Picking up with the cross-examination of Dr. Herek by defense counsel Detmer.

The line of questioning in the cross has gone toward trying to prove that sexual orientation is variable and ambiguous, and so calling gays and lesbians a “suspect class” is suspect, because the definition is so wanting. In doing so, the defense has to ignore the preponderance of the evidence and focus on sentence fragments or things like the Kinsey Report.

Back in a bit…

Boutros is saying that they have a series of videos to display after cross that would take about 90 minutes. They plan to finish their case today.

Walker: That gives us a target to shoot for, to get done by 4:00.

Detmer: I appreciate that target, though I think it would be unlikely. OK, Professor Herek, good afternoon. Identify this document?

Herek: This is the text of an article “Definition and Measurement of Sexual Orientation.” Published in 1995.

D: Familiar with it?

H: Read it some time ago.

D: Authors discuss difficulty with measuring sexual orientation. P.4. They write, “Given such significant measurement problems, one can conclude there’s serious doubt whether sexual orientation is a valid concept at all.” Is that an unreasonable statement?

H: I think that you shouldn’t pick one thing out of a single article. Later in the article, it says that most people in N.America identify themselves as homosexual, heterosexual or bisexual. This is a philosophical debate.

(there’s a lot of static in here right now, hard to hear)

D: Is that what they mean…

H: Not sure. I think they end by referring to philosophical debates, but they say that people in N.America report themselves as homosexual, heterosexual or bisexual.

D: Social construction? (didn’t get that question)

H: This is a statement of social constructionism that escapes nuance of their view. To say there’s nothing “real” about sexual orientation about the social construction of it, that’s to minimize the importance of that social construction. They’re talking at the cultural level. To say there’s no such thing as race or sexual orientation is to minimize that. This is about the way in which the culture defines how people view reality.

D: Says “social constructionists reject view of biological factors” in race or ethnicity. Agree?

H: They would say that culture builds on the raw material. They would say race is a constructed category based on physical characteristics. They would say a similar thing based on sexual orientation. Doesn’t say an individual constructs their sexual orientation based on nothing and they could change it tomorrow.

D: Next page. They wonder if they measure sexual orientation separately.

H: One of the limitations in the real world is you can’t ask that many questions in a particular survey.

D: Turn to p.7. There’s a cell scale of sexual orientation, p.7-11. There’s a 4-page, 17-part, multiple-sub-part test to measure sexual orientation. Familiar with it?

H: Read about it.

D: Reasonable measurement?

H: I don’t think many people have used it because it’s so unwieldy.

D: Reasonable?

H: Part of reasonableness is whether it’s feasible. Not many people have used it.

D: Do they think it’s inaccurate or impractical?

H: Just too unwieldy in a real-world setting.

D: Next document.

H: This is the Handbook of Applied Development in Science, Vol. 1.

D: Look at the next page and identify it.

H: Chapter 5. Diamond and Williams, “Sexual identity.”

D: Familiar with it?

H: No.

D: Familiar with Lisa Diamond and Rick Sabin-Williams?

H: Developmental psychologists with good reputations.

D: Look at this page. Says, “There is currently no scientific or popular consensus on the exact experiences that qualify someone as LGBT rather than curious.” Agree?

H: I’ve talked about this several times. This is from applied developmental science, and they’re talking about the experiences of very young people. They are especially talking about adolescents, at a phase in their life when they are going through new experiences. Tough to say that sexual orientation is defined in that context.

D: Is that an accurate statement.

H: In context of unanimity, there is not unanimity.

D: In scientific or popular context.

H: There’s never unanimity in a popular context.

D: Later, it says that these are complex.

H: I would disagree with the phrase “uniform correlations across these domains.” If they mean that few individuals are consistent across their behaviors and desires and identity… We know that the vast majority are, but some are not.

D: Is it unreasonable.

H: If this is intended to mean that few people are consistent across their behaviors and desires and identity, then it’s an inaccurate statement.

D: I didn’t say inaccurate, I said unreasonable.

H: I tend to think that accuracy matches reasonableness. We have data, and we know this is inaccurate.

D: Is this outside the mainstream of scholarship.

H: Haven’t read the whole thing. Would be hesitant to judge on one or two sentences out of context.

D: New document. Identify?

H: Book by Janice Bohan “Psychology and Sexual Orientation.” 1996.

D: Familiar with it?

H: Yes.

D: P.13. First line: “The concept of sexual orientation is not straightforward… the topic is fraught with vagaries, the stable categories belie complexity.” Reasonable?

H: Says “as suggested in the introduction,” so she probably lays out a number of examples. So she shows some inconsistencies. In that context, that’s reasonable.

D: Another document. Declaration from Dr. Yowtzabede (sp?) in a different case. Offered as an exhibit by City and County of SF. Familiar with the doctor?

H: Seen his name, not familiar with his work.

D: P.3-4. He writes: “The sexual orientation of any people falls within the spectrum of same gender or opposite gender. No sharp line distinguishes homosexuality and heterosexuality.” Agree with the statement “The sexual orientation of any people falls within the spectrum of same gender or opposite gender”?

H: Referring to Kinsey continuum. Is possible to think of sexuality as a continuum.

D: He says: nearly are homosexual people are capable of some hetero response. All hetero people are capable of some homosexual response. True?

H: Seems like a reasonable assumption. Don’t know the studies he relied on to make that statement. Lowen study, many people say they don’t experience attraction to people of same-sex. Not sure what homosexual or heterosexual response means.

D: What about “No sharp line distinguishes homosexuality and heterosexuality”?

H: Using the words homosexuality and heterosexuality. Some people may see a clear line between whom they’re attracted to. The general construct, the nature of a continuum is that there’s no clear, sharp line at any particular point.

D: New document. Identify it?

H: “Lesbian Health” edited by Andrea Solarz.

D: Familiar with it?

H: Not read entire document, may have read portions. Released 10 years ago.

D: P.23. Section called introduction. Sentence says “Lesbians do not constitute an identifiable, homogenous population for research study.” Agree?

H: (actually reads whole paragraph, then) Their point is that the lesbian population is not homogeneous. Some may belong to self-identified community. Some afraid to identify as a lesbian. Also diverse among race and ethnicity, SES, age. In that sense, it’s perfectly appropriate to say that.

D: It said identifiable, not just homogenous. Agree?

H: Don’t know what they mean by “identifiable.” Could be about the difficulties in believing that all women who are lesbian will state that to a survey researcher. May go back to different components of sexual orientation we’ve been discussing over and over.

D: Next section: “Views of sexual identity and behavior can vary differently across racial, ethnic and cultural groups.” Agree?

H: Useful to on further and see that they’re talking about views of family, religions, traditional gender roles are the things that vary across different cultures. That might be related to how one understands lesbian identity.

D: P.25. This is about how the committee defines lesbian. Says, “In general, sexual orientation includes desire, behavioral and identity dimensions.” Here it says each of those components occurs among a continua.

H: They cite Lowmen. We’re back to those Venn diagrams. Point to the same thing we talked about this morning. There are groups that are consistent, and some individuals that are not. They want to be as inclusive as possible in their report.

D: P.33. They write: “The committee strongly believes there is no one way to define a lesbian.” Agree?

H: Goes back to what I was saying, it defends on the specific study at hand. If you’re studying sexually transmitted diseases, focuses on behavior. If you’re studying discrimination, focuses on identity. Etc.

D: They say after that: “The document does not avoid the definition. It accepts the complexity of sexual orientation.”

H: Read the next sentence. “Lesbians should be studied within generally acceptable boundaries, with the components of behavior, desire and identity.” Consistent with what I was saying.

D: New document?

H: Chapter by Siborak and Weinrich. “The Definition and Scope of Sexual Orientation.”

D: P.2. Discussion about the words lesbian and gay as opposed to homosexual. Says: “The words gay and lesbian describe a particular identity that goes beyond mere description.” Agree?

H: Same statement verbatim from another paper we discussed a few documents ago. This is roughly the same thing. Talking about concerns about terminology. It can be argued that the words gay and lesbian describe a particular identity that goes beyond mere description. Primarily rooted in a social and political context of late-20th century, although the words have a venerable history. That can all be argued, it’s reasonable.

D: Thank you. Now talks about bisexuality. Says that a study showed 36-59% of homosexual individuals studied had heterosexual intercourse. Do those statistics surprise you?

H: Probably not based on a representative sample in the countries described here. I would be careful in looking at the proportions. Most people brought up assuming that they would be heterosexual. Growing up with those expectations, not uncommon for people to engage in heterosexual sex before they come to terms with their own identity. Not uncommon to report that they did experience heterosexual intercourse, even though it’s not indicative of current attractions.

D: Says lesbian sex is more diverse, at least 74%-81% of homosexual women engaged in heterosexual intercourse. Surprised?

H: Again, not a representative sample. Percentages not something we can generalize. But consistent with what I was saying. May be more likely for women, because of status of women in society. Young women are sometimes pressured to marry before they have a sense of their own sexual orientation.

D: They write: “Many cultures have no concept of homosexuality and homosexuality. Same-sex behavior in these cultures is not defined as sexual orientation.” Agree?

H: I would agree with that.

D: New document. Identify it?

H: Article from “Pediatrics” from 1992, from Gary Ramafetti and others, “Demography of Sexual Orientation in Adolescents.”

D: Read it?

H: Maybe back then.

D: P.17. Reads: “Sexual orientation has been defined as a consistent pattern of sexual arousal toward same or other gender. Heterosexual and homosexual dimensions may be at variance with one another.” Agree?

H: Again, the data indicate, for the most part.

D: “numerous orientations are possible and even probable in sexual orientation.” Agree.

H: Go back to that grid of 21 boxes. When you actually do the study, in reality, there’s one common, consistent dimension. There are exceptions, but that’s true for the most part.

D: Talk about whether sexual orientation changes over time. Do some people experience change and fluidity over their lives?

H: We know that this does happen. Sometimes people intervene, sometimes not.

D: Don’t want to talk about intervention. Some people have said women are more fluid in their sexual lives, correct?

H: Yes, that’s accurate.

D: You discussed studies where you found that gay men and lesbians saw no choice in their sexual identity.

H: Yes.

D: How did you identify the sample of gays and lesbians who you asked that to. Identity? Behavior? Attraction?

H: Large, multi-stage sample from a survey organization. They asked a sample of people representative questions. Asked “Are you lesbian, gay or bisexual.” If they asked yes, they were invited to my study. Then they were asked a series of screening questions about their sexual orientation. For example, for men, asked which described them: Gay, bisexual but mainly attracted to men, bisexual but equally attracted, bisexual but mainly attracted to women, or straight.

D: But initially, they self-identified?

H: yes, but we had an additional stage.

D: These studies did not ask about sexual orientation having changed.

H: Yes.

D: Study shed no light on this question?

H: No, we didn’t ask that.

D: Does that affect the study?

H: If we’re talking about general patterns, you could bet that future sexual behavior will correspond to current identity. But there are exceptions.

D: Turn to your deposition, p.27. Did you give that testimony

H: Yes.

D: I’ll read. “If you try to predict that behavior for any individual that would be problematic.” Correct?

H: Yes.

D: We know people report a change in their sexual orientation.

H: Yes.

D: But we don’t know why that happens in every case, correct?

H: Correct.

D: People don’t have understanding of their mental process, correct?

H: Yes. People can’t tell you about their mental processes with respect to their prejudices, for example.

D: New document. Transcript of portions of deposition of Sandy Spier. I’ll read some of it. Are you aware that Miss Spier was previously married to a man?

H: Yes.

D: Here, this says “When I married Matthew, I did love him.” Does that surprise you?

H: I have no expectations about it.

D: Asks “Were you attracted to him physically,” she said yes. Surprise you?

H: Again, I have no expectations about it.

D: She says “It was my goal to have a meaningful marriage,” and that she did. It that surprising?

H: Same response.

D: P.198-199. Asks if she has always been attracted to women, she answered no. Does that surprise you?

H: That’s consistent with the expectation that most people are raised with that they would be heterosexual. Gays or lesbians might be able to point to a portion of their life when they identified as heterosexual.

D: Without using the enduring attraction definition, Miss Spier would not have been gay at one point, right?

H: You’re asking about her entire life. An enduring pattern is an significant period of time, not the entire life.

D: A 2003 survey of CA adults showed 9% of gay men and 23% of lesbians found they had been married.

H: Is that from the Williams study?

D: It’s from your expert report?

H: I believe it’s the Williams report at UCLA.

D: That’s consistent with Spier’s experience?

H: Yes, she was married to a man, so that is consistent.

D: New document. Identify it?

H: A report from UCLA researchers titled “Marriage, Registration and Dissolution of Same-Sex Couples in the US.” Lee Badgett and others.

D: Page 10. There’s a figure at the bottom. Percent of same-sex couples previously married among couples who seek legal recognition. Percentage of males is 20%, women 29%. Correct?

H: That’s what it shows.

D: So being married to an opposite-sex spouse is not particularly unusual?

H: Correct.

D: This is plaintiff Perry’s deposition. Page 152.

(Some discussion of what defense should be allowed to read)

D: “Question, did you go through a process, arriving at identifying being a lesbian. A: It was a process. Q: Tell us that process. A: I felt a strong attraction to a woman in college. Thought it was a one-time thing, took a few years to see an enduring pattern. Wasn’t certain until I had had enough other experiences. I arrived at that conclusion and adopted that sexual orientation for myself.” Does that last phrase surprise you.

H: She’s describing that sexual orientation is generally understood as an enduring pattern. She experienced these attractions as an enduring pattern. After she recognized this pattern, she adopted that label as an identification or herself.

D: New document. Identify it?

H: “A New Look At Women’s Sexuality and Sexual Orientation.” Barnett and Peplow. Published in CSW Update. Don’t know what that is.

D: Familiar with Barnett (sp) and Peplow?

H: Yes.

D: Here’s a part, “Fluidity of Women’s Sexuality and Sexual Orientation.” Says women’s sexuality is fluid and malleable.

H: I would agree with what many scholars have noted, that women’s sexuality is subject to many environmental cues. A number of different aspects of women’s sexuality have shown greater sensitivity to women over men in this area.

D: Says female sexual development is a lifelong process with many changes. Agree?

H: Depending on what you consider development. But this is the general view of all kinds of development. It is possible to have many changes. But for most people it doesn’t seem to happen.

D: It says women’s sexuality is subject to social and cognitive influences. Agree?

H: Yes. Accurate characterization of the literature.

D: New document. Identify it?

H: Article, from 2001, “Rethinking Women’s Sexual Orientation: An Inter-disciplinary Focus” by Peplow.

D: Familiar with Peplow, good reputation?

H: Very solid reputation.

D: P.5. Reads, “although some may think sexual orientation develops early in life and doesn’t change, studies have shown that women’s sexuality can change over time.” Agree?

H: Consistent with what I’ve been saying, this can happen.

D: P.13. Says that Hazen and Diamond rejected single partner theory, and showed that individuals have a image for mating that is inherently flexible and can bond with a range of partners. Agree?

H: I don’t believe I read the article by Hazen and Diamond. Don’t believe I can agree or disagree.

D: But do you agree with the statement in general?

H: This may be talking about the experience of romantic love, or platonic love as opposed to sexual attraction. Haven’t read this article, she’s quoting from another article I haven’t read.

D: Asking if you agree with the statement.

H: Can’t do so if I haven’t read the article.

D: Another document, one we already talked about. P.333. Says “women’s identification as homosexual or heterosexual, and women’s sexual behavior, can vary over time.” You agree?

H: I’ve said that several times.

D: P.345. Factors shaping women’s attractions and relationships vary across the life cycle. Some remain in the same job over their life, some make career changes. Similarly women’s erotic attractions can vary. Agree?

H: Yes, they can.

D: New document. Identify it?

H: An edited book, “The Psychology of Sexual Orientation, Behavior and Identity.” Diament and McCallum. 1995.

D: Specific chapter.

H: Chapter titled “Sexual Orientation and Development: An Interactive Approach.”

D: P.82. “By Sexual orientation, we mean the cumulative experience of attraction, behavior and identity toward another or the same gender… this model suggests that sexual orientation is not static and can vary over a lifetime.” True?

H: As I’ve said, it can happen.

D: New document, we discussed it earlier. P.4. Says there’s no research on the longitudinal ability of sexual orientation over the life span. Still unanswered whether this would predict future behavior. Agree?

H: Talking about absence of prospective longitudinal research. We do have retrospective accounts showing consistency among these variables. If you’re trying to predict future sexual behavior past adulthood, you could hypothesize that it would track with their current sexual orientation. If in fact they engage in any sexual behavior. We do have retrospective accounts. Don’t have prospective accounts.

D: I don’t think they’re talking about celibacy here. They’re saying that it’s an unanswered question whether this would predict future behavior.

H: One of the authors is the one who put together that 21-stage study of sexual behavior. As far as predicting future behavior or orientation, we don’t have large-scale prospective study.

D: OK, another document. Since we’re talking about retrospective data. This says “We find 2.7% of the men had male partner, 1.3% females had female. 1/4 of these had at least one partner of each gender.” Familiar with statistics?

H: Yes.

D: Says over last five years. 4.4% of men and 2.2% of women had same-sex partners, of those, over 1/2 had both partners of each gender. Familiar?

H: Yes.

D: Since age 18, around 10% had a same-sex partner. Familiar?

H: Yes.

D: For past year, for both men and women who had same-sex partner, says 75% had same-sex partners only. For past five years, of both men and women who had same-sex partner, 50% had opposite-sex. Since age 18, of men who had male partners, 80% had opposite-sex partner. Of women, only 10% of them who had same-sex partners had only same-sex partners. Since puberty it declines again. Familiar with stats?

H: Yes, and it’s not terribly surprising that gay men and lesbians have had a partner of the opposite-sex at some time in their life. Important to keep in mind, that in this study, those who identified as lesbian and gay were very consistent in their attractions and behavior towards the same sex.

D: New document. Bad news is I have another binder. But it’s much thinner. (sheesh)

H: Much thinner.

D: I am happy to report it’s the last binder. OK, next document. Identify it?

H: Article from “Developmental Psychology.” From Lisa Diamond: “Female Bisexuality from Adolescence to Adulthood.”

D: Familiar with this study?

H: Yes.

D: This is a ten-year study focusing on non-heterosexual women?

H: Yes, that’s the focus of this study.

D: Page 9, results.Says “32% of women changed identity from T1 to T2, 25% T2-T3, etc.” By the 10 year point, 67% had changed identities at least once. Only 33% had kept same identity, yes?

H: She recruited lesbians and bisexuals and women questioning their sexuality. So she found patterns of women changing the labels. In her view, she said that this did not mean women changed their sexual orientation. Patterns of sexual attraction remained fairly stable. Change was in the labeling. Some bisexuals called themselves lesbian, some heterosexual. Very few women who started calling themselves lesbian, and changed to heterosexual. Some went from lesbian to bisexual.

D: So identity changed but not the attraction.

H: She focuses on labeling, not identity, but yes.

D: New document. Identify it?

H: Article with several authors, first is Nigel Dickson. “Same-sex Attraction In A Birth Cohort.” 2003.

D: Page 1611. This is a longitudinal study of 451 men and 436 women over 5 years who reported sexual attraction at age 21 and 26. Page 1612, under discussion, second graf, you see: Findings revealed surprising degree of change over time. Changes not just in one direction. Instability most for women. Changes surprise you?

H: Not familiar with this paper, but know the study. My recollection was that there were only 9 males and 11 females who identified as being lesbian, gay or bisexual. Problems with generalizing from such small numbers. But adolescence is a formative time. So not totally surprised by changes at this stage of life.

D: New doc, identify it?

H: Article, first author Joseph Stokes. “Predictors of Homosexuality, A Longitudinal Study of Bisexual Men.”

D: This is a one-year longitudinal study. They used a 7-point scale. 51% changed from time 1 to time 2, 49% didn’t change. 34% moved to heterosexuality, 17% moved to homosexuality. Surprised?

H: This is not a representative sample. They were recruiting relatively young men. Late teens and early 20s. Said they had sex with a man and a woman in the past three years. They were recruiting people based on sexual behaviors. The idea that in early adulthood, some people who engaged in sex with men and women, would shift to one or the other, does not surprise me.

D: We talked about change generally. Nobody suggesting they should be forced to change sexuality. Is it your opinion that anyone who wants to change sexual orientation cannot do so?

H: Interventions designed for that purpose have not been effective. Many people, maybe because of stigma, wanted to change orientation and were not able to do so.

D: Stepping back from technical definition, is it impossible for someone to change sexual orientation if they wish to.

H: I would be reluctant to say anything’s impossible.

D: There are self-reports of that?

H: Yes.

D: Are interventions always harmful?

H: We don’t have experimental data that they are harmful or effective. We have self-reports of harm and some data showing harm.

D: What particular data?

H: If you read 1970s research reports, there are reports of some people who experienced intervention to change orientation were observed to have clinical depression or anxiety in conjunction with these treatment programs.

D: But the data is limited?

H: The data don’t suggest interventions are effective or even safe.

D: New document. Identify it?

H: Article by Robert Spitzer. 2003. “Can Some Gay Men and Lesbians Change Their Sexual Orientation?” 200 participants reporting a change.

D: Familiar with author, expert in his field?

H: Considered an expert on clinical diagnosis. Worked with DSM.

D: Worked on removing homosexuality as a disorder from the DSM?

H: He was a prominent member of the committee of American Psychological Assn.

D: P.213. “This study indicates that some gay men and lesbians have reported changes through reparative therapy.” You have taken issue with that?

H: That accurately states what he found. Some gays and lesbians report that they made changes. Not a problem with that statement. I would take issue with the idea that the interventions were responsible, and that these individuals wouldn’t have changed on their own. They were all highly religious.

D: Do you question the accuracy of the reports?

H: We know that people are not always aware of their mental processes. They don’t know why things happen. This is why we use experimental design. We know about the placebo effect. Symptoms go away from a sugar pill. People are not able to tell you why things have happened to them, sometimes.

D: Haven’t you relied on self-reporting?

H: I try not to require people to report things they are not capable of reporting. But in situations where I try to show cause and effect, I try to use a design for that purpose.

D: When you asked people if they experienced no choice in being gay, you took them at their word.

H: I took them at their word on what they experienced.

D: New doc, identify.

H: Copy of a letter Sigmund Freud wrote to a woman in the US who thought her son was gay. Referred to as a “Letter to an American Mother.”

D: It says, “By asking me if I can help, you mean if I can abolish homosexuality. We cannot promise to achieve it. Sometimes we remove the blighted germs of homosexuality.” Agree?

H: Freud was writing this in 1935. Certain psychoanalysts tried to cure homosexuality at that time. Freud also said that homosexuality was nothing to be ashamed of and not a disease. He said it’s a great injustice to prosecute homosexuality as a crime.

D: So Freud had no animus for homosexuals?

H: Right. But Freud told the mother that through analysis, the son could have a health life regardless of sexual orientation. Freud thought all people are habitually bisexual, and they become one or the other as part of their development.

D: But he says “in a certain number of cases we succeed.” Mistaken?

H: Problem looking at interventions by psychoanalysts. Same person is administering the treatment and judging the success. Analyst wants it to succeed and so does the person. So standards for evaluating effectiveness were not followed by Freud.

D: Impossible he was not being accurate or honest.

H: Not implying Freud was dishonest. He thought he was being honest, but research is an open question.

Walker: Let’s plow on.

H: How long?

D: Probably 1/2 hour, 45 minutes to go.

Short break. Teddy will follow up at The Seminal. Will provide link when it’s up.

UPDATE: Here’s the link to the rest of this afternoon’s liveblog, from Teddy.

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David Dayen

David Dayen