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Prop 8 Trial Liveblog Friday Morning 2 (35)

We’re in the cross-examination of Professor Herek by defense counsel Detmer. By way of wrapping up the morning’s events, I want to highlight what Bill Egnor said in this comment about Dr. Herek’s direct testimony:


“Yes, a great deal of research shows G&Ls face stsigma. Lots of people say they have negative feelings, or even feel disgusted by G&L. FBI tracks hate crimes for sexual orientation. National study I conducted, found 1 in 5 G&L had experienced violence. Lower percentage had experienced discrimination in employment. WE see prejudice in schools against children thought to be G&L. Think about it: many places two men cannot walk down the street holding hands.”

Is a HUGE deal. It shows that gay citizens are a suspect class caused by the lack of equal rights! That is what will win this on 14th Amendment grounds!

That’s certainly the case that the plaintiffs are trying to prove. And William Tam’s bigoted comments actually play a part in that. The majority in California took away rights from a suspect class based on animus. This strikes to the heart of the Constitutionality.

Picking up in a moment…

OK, here we go.

Detmer: We have an email confirming receipt of the sexual orientation employment book. The plaintiffs have it and are aware of it.

Nielsen: You could have questioned Badgett about those books when she was on the stand, and this witness hasn’t read it. Object based on lack of foundation.

Walker: What do you need from these books?

Detmer: I’m interested in the excerpts.

Walker: Why not just admit excerpts?

Detmer: All right.

D: What’s this document?

H: “Best Practices for Asking Questions About Sexual Orientation On Surveys.”

D: Let me ask you about it. Under “measurement,” it says differences in relationships and sexual practices around the world, it calls into question sexual orientation as a construct.

H: That’s accurate about most surveys about constructs. There are differences around the world. That fits well with the concept of sexual orientation.

D: Specifically with the concept of sexual orientation.

H: Yes.

Walker: What does this mean, in lay terms.

H: We try to start with the theoretical definition of a variable. But how do you measure it. One might have a general definition of socioeconomic status, but you have to figure out a way to ask the question of individuals. So when we operationalize, we’re putting it in measurable terms.

Walker: Is that a proxy for some variable?

H: Yes. You’ll always miss something from the theoretical definition. Some are better than others.

D: What’s this document?

H: This is called “Sampling LGBT Populations.”

D: Familiar with this document?

H: I think I read it.

D: Familiar with Prof. Meyer? He’s a plaintiff’s expert in this case.

H: Yes.

D: On p.24, it says, “Researchers have distinguished among sexual identity and sexual behavior. There’s an overlap among same-sex and heterosexual, but not much – around 20%.”

H: Another study found these three categories – lesbian, gay or bisexual – overlap substantially. But there were some gradations. Some same-sex desire, etc. That was the largest group in this minority of overlap. Some said they engaged in same-sex behavior but did not have same-sex attraction.

D: Do you think these numbers are accurate?

H: Willing to assume he’s stated them accurately.

D: Says varied groups can be identified within these categories. Do you agree that identity labels for sexual orientation vary in this manner?

H: Not sure what he means by “identity labels vary.” We’ve seen differences across racial and ethnic groups. There was a study saying 95% say they don’t have a choice in sexual orientation, and “bisexual men” had higher incidences in A-A and Hispanics. Meyer mey mean that a word like “queer” is more common among the young. Not sure about the reference to geographical regions. Maybe lays that out in greater detail later.

D: Meyer states: Behavioral definitions also vary. Researchers have referred to different time periods for sexuality – past year, past five years, before 18 or ever. More people have same-sex relationships when young. Many don’t have them after age 18. True?

H: I explain this to students. You have to specify the time period when asking about behaviors. If you specify a broader range of time, you’ll get a higher level of that behavior. Likely to get a higher number if you ask about 20 years than if you ask about 1.

D: Here’s a document: “LGBT Health, Findings and Concerns.” Familiar with this?

H: Not sure I’ve seen it.

D: Familiar with these professors who wrote it?

H: Yes.

D: P. 102: “Degree of which sexual orientation or gender identity is central to ones self-definition… vary greatly among individuals.” Agree?

H: I would say yes, in the same way that rejection of stereotypes varies from one individual to other.

D: Says later, LGB individuals defined by sexual orientation, a definition that is complex and variable. Shifts and changes over history and cultures. Agree?

H: Well, we’ve been discussing the fact that it’s complex. Variable is, some categories of heterosexual and homosexual has been in the literature since the 19th century.

D: You’re saying that it shifts and changes?

H: Has shifted and changed.

D: P. 135. It says “Many different terms were used to label sexual orientation before LGBT and heterosexual had widespread use.” Agree?

H: That there were different terms? Yes. Homosexual appeared in medical literature in late 1800s. Gays and lesbians are more recent, in general culture since 1960s. Other terms were used before that.

D: Next sentence, “Unfortunately, there is still no general consensus on the definition to these terms.” Agree? Including homosexual, gay and lesbian?

H: Not exactly sure what they mean by consensus. These terms are used in different ways by researchers, depending upon the study. Later, they say it might be defined as a form of identity, or a gender preference for sexual partners and behavior, or a gender preference for attraction. Researchers use different operational definitions of the terms. I wouldn’t say no consensus.

D: You said you wouldn’t say it that way, but is “no consensus” an unreasonable statement?

H: If they mean no one definition used by researchers, I agree. If they mean no way to understand what homosexuals are, I don’t agree.

D: So that would be unreasonable? If they used the term more broadly, that’s unreasonable?

H: I’m a little bit lost. A reasonable statement is there’s no one definition used in every research study. That’s accurate. If they mean, and they probably don’t, that each study comes up with a different definition, well, I don’t think that’s what they meant.

D: Let’s move on. Later, it says, 1-4% are gay or lesbian, and greater numbers are classified as bisexual or with same-sex attraction (20%). Familiar with those stats?

H: Yes. It shows, if you simply ask about same-sex attraction, we get a broader number of people saying that, who would not identify as LGBT.

D: Turn to the next page, 136. First graf. Says that existing measures of sexual orientation range from a simple yes-no, to more complex measures. There exists no consensus on when and where these measures should be used. Agree?

H: Well, it makes sense that if your study is based on attraction, you’d use different measures than if your study is on sexual history.

D: Says no consensus on when and where these measures should be used. Agree?

H: There’s that word consensus again. Not sure what they mean. There is variability on how sexual orientation is measured. People could be criticized on the basis of what measurement is used for a particular study. So in that sense, there may be no consensus. Certainly, these references show how researchers were developing measures of sexual orientation. They must be referring to putting these measures side by side and comparing them.

D: Moving on. What’s this document.

H: An article, “A new paradigm for understanding women’s sexuality.”

D: Familiar with it?

H: Yes.

D: Familiar with the author, Peplow? She’s one of the plaintiff’s witnesses.

H: Yes.

(Objecting because the witness was available for cross and this wasn’t entered into evidence. Walker wants to see where this goes.)

D: These documents go to the basis of his testimony. Here’s a table called “Old and new paradigms for women’s sexual orientation.” The authors label “old perspective”: sexual identity, attraction and behavior form discrete categories. “New perspective”: sexual identity, attraction and behavior can be merged and inconsistent. Agree?

H: What Peplow is pointing out is that data show there are people, even though they may be a minority, for whom their behavioral histories, their identities, and attraction don’t match up perfectly.

D: Later in document, “More broadly, phenomena of sexual orientation are not fixed and universal, but highly variable across time and place.” Agree?

H: If we were looking at all people around time, experience of contemporary women won’t match up with women across all cultures and all times. That’s what she’s saying.

D: Later on, a heading “Multiple Pathways.” Says, “In contemporary society, assertion of heterosexual or lesbian is very diverse. Does not inform us about the pattern of her life experiences or nature of current erotic thoughts.” Agree?

H: People expect a simple, single explanation applying to everyone. This says people arrive at sexual orientation through different pathways. There may be a variety of experiences and biological factors.

D: What about the last part, “Knowing that a woman is heterosexual or bisexual or lesbian does not inform us about the pattern of her life experiences or nature of current erotic thoughts.” Is that accurate?

H: Again, we see there that, most people labeling themselves heterosexual have different-sex attractions, most people labeling themselves lesbian have same-sex attractions, but there could be some overlap.

D: Do you agree with that statement?

H: I agree with what I just said.

D: Do you agree with that statement.

H: Yes, in the context of what I just said.

D: Your honor, I think we’ve laid foundation for this next document.

Walker: OK.

D: Look at this document. Can you identify it?

H: Called “Development of Sexual Orientation in Women.” Peplow and others wrote.

D: Familiar with this document?

H: Believe I have read it in the past. Where is it from?

D: Not certain at the moment.

H: From a journal or an edited book?

D: I believe the answer is yes, but I’m not sure which. You are familiar with Peplow?

H: Yes.

D: Turn to p.83. Author writes: ample documentation that same-sex attractions or behaviors not linked inevitably to identity. Agree?

H: Next sentence talks about women friendships in 1800s, that did not lead to identity. So that’s a true statement.

D: What about in general?

H: Without reading the entire article, I’ve already said a person’s attractions and behaviors don’t match the identity label. This seems to talk about historical research. But yes, some individuals’ identity label isn’t predicted of attractions and behavior.

D: Do you agree that there’s no inherent link?

H: Not sure what they mean by an inherent link. I have a problem with that. For most people there is a close relationship, but for some people there is not.

D: Stated broadly, could you say behaviors and attractions are not inherently linked to identity?

H: I’d want to know what they mean by inherently. If you’re a betting person, if someone tells you they’re heterosexual, you could bet they’re attracted to opposite sex. But there are exceptions. If you mean by inherent that it’s exclusive, then no, it isn’t inherent.

D: Next document. identify it?

H: Cover of a book describing the Lowmen (sp?) study. “Sexual Practices in the United States,” chapter 8.

D: Familiar with this and relied on it in forming expert opinions?

H: Yes, I relied on some of the data.

D: Noted it in your report. This is a large national survey with large probability sample.

H: Yes, it’s a national respected survey on sexuality.

D: Is it not large?

H: I remember 3,200 people, good-sized sample.

D: Still considered the authoritative source for data, yes?

H: I believe I wrote these words.

D: P.290. “To quantify or count something requires unambigious definition of the phenomenon in question. We lack that for homosexuality.” Agree?

H: They’re talking about an operational definition. Could use identity, behavior or attraction. That causes problems.

D: If you pick one definition, is that unambiguous.

H: If you pick it, that would be unambiguous.

D: That’s tautological. Is there one definition.

H: These researchers looked at behavior and attraction and identity, and they explained in great detail how they did it and report findings. The issue of ambiguity is about using specific terms.

D: Do you agree that we lack an unambiguous definition of homosexuality.

H: Certainly to quantify or count.

D: Do you think there’s a single definition?

H: It could be understood as an ongoing pattern of attraction, sexual behavior, or self-identification. There you have a definition that is unambiguous.

D: Sounded like three definitions.

H: That encompasses the phenomenon. They say in the report that the definitions generally coincide.

D: Here are some Venn diagrams. For women, this diagram indicates a circle for desire, one for behavior and one for identity. It says they overlap for only 15% of those studied?

H: But it shows that those who identify as lesbian, all of them exhibited behavior and all but one exhibited attraction.

D: But no overlap with those who cited attraction and identity.

H: They used a broad definition, would having sex with another woman be “somewhat appealing.” Very broad.

D: What about this part.

H: 23 women had all three. Another identified as gay and had desire but didn’t engage in the behavior.

D: What’s this sub-sample.

H: This indicates those who didn’t have all three.

D: Let’s look for men. You’ll see that desire, behavior and identity overlap for only 24% of sample.

H: Yes, but those who identify mostly have attraction and behavior. And three men who identified as gay or bisexual said they had no desire or behavior, but the researchers think they made a mistake on the form.

D: Possible they didn’t?

H: Sometimes people do make mistakes on the form.

D: 22% had behavior but not desire or identity, 6% had desire but not behavior or identity.

H: Yes, but none of these identified as gay or bisexual. But the desire and behavior samples were broad, “somewhat appealing” or “anytime before 18.”

D: The researchers said this data shows high variability in sexual orientation. Raises provocative questions about definition of homosexuality. Agree?

H: Keep reading. They say there is a core group in the survey who define themselves as gay or lesbian, express desire and exhibit behavior. There are some who have some behavior or some desire but do not identify.

D: But do you agree that it raises provocative questions.

H: Again, there’s a core group. But there are exceptions. Does say there’s some overlap.

D: End of the paragraph. “While the measurement of same-gender practices is crude at best. But this provides unambiguous analysis that…. homosexuality is fundamentally a multi-dimensional phenomenon that has manifold meanings and interpretations.” Agree?

H: Yes, but it’s key they’re using the term “homosexuality” here. They’re saying there’s overlap on some categories, behavior, identity and desire, but there’s a core group with all three.

D: Do you agree it’s a multi-dimensional phenomenon?

H: What I’ve been saying for the last few hours.

D: What’s this document?

H: The book “Sexual Behavior in the Human Male” by Kinsey.

D: You relied on this document in the expert report.

H: Portions of it.

D: P. 639. This is a famous quote: “Males do not represent two discrete populations, heterosexual and homosexual. The world is not divided into sheep and goat… the living world is a continuum of differing aspects.” You agree that sexual orientation ranges along a continuum.

H: That’s how we generally understand it.

D: Earlier on the page: “There is a considerable portion of population whose members have combined heterosexual and homosexual experiences. Some predominate on one or the other, some have substantial amounts of both types.” Agree?

H: Only thing I would qualify is, Kinsey was only sampling men. His sample was problematic, it couldn’t be assumed to represent the population at large. He was an amazing researcher, but his sample cannot generalize to entire population. You would say half of all men have homosexual experiences or desires. That’s inconsistent with other surveys.

D: We should be cautious of precise numbers or proportions with Kinsey.

H: Shouldn’t generalize to the whole population.

D: That just goes to the numbers, not his analysis.

H: Yes, to the numbers.

D: Here’s Kinsey’s heterosexual/homosexual rating scale. This graph has 0-6 along the bottom, and the line reflects the sampling…

H: I don’t think that’s what it reflects.

D: OK, it reflects the degree of heterosexuality or homosexuality for each metric.

H: Yes.

D: Here’s his scale. Based on psychological reactions and experiences. 0-6. 0 is heterosexual exclusively, 3 is equally, 6 is homosexual exclusively. Is this a good way to measure homosexuality?

H: I don’t think Kinsey wanted to measure homosexuality. He was interested in experiences. This is about attraction and behavior, but not identity.

D: But attraction and behavior are parts of sexual orientation?

H: They are components of it.

D: Here’s a new document. Identify it.

H: This is a 1977 paper, “Components of Sexual Identity.”

D: Familiar with it?

H: Haven’t looked at it for a while, but yes.

D: P.45. Under sexual orientiation heading, he writes, “Sexual orientation can be viewed as having two aspects: physical preference and affectual preferences. Physical preference is about physical partners, affectual preference is about emotional partners.” Individuals can be heterosexual, homosexual or both, or having some of each. There’s a figure depicting this. He writes, affectional preference can also have two continua. There’s a figure for this too. Two metrics each for each preference. He writes, “bipolar view of sexual orientation as physical preference…” he rejects that bipolar view, that’s why he has two continua of each preference. We end up having four graphs, essentially. All with numbers from 1-5. Do you believe this is an unreasonable measurement?

H: This was developed at a time when psychology was looking at gender, masculinity and femininity in a particular way. Some researchers went away from the continuum, and saw that some people could be masculine and feminine. These researchers were influenced by that, and used the Kinsey graph and saw that you could be high on both heterosexuality and homosexuality. Again, they are not asking about identification, or sexual history.

D: So this would be a good measurement of orientation.

H: It could be.

D: Here’s a new document. Identify it?

H: Article from 1985. “Sexual Orientiation: A Multi-Variable, Dynamic Process.” Klein is the first author.

D: Familiar with the document?

H: Yes.

D: P.35. Authors write: “Researchers have failed to define sexual orientation successfully. It must be recognized within a dynamic and multi-variant framework.” Is that unreasonable?

H: Not in 1985. But since this came out, researchers have used it, and all of these different components cluster together. The sexual components boil down to one underlying dimension in how people complete this grid.

D: Let’s look at the grid. It has several variables on the left. Attraction, behavior, sexual fantasy, emotional preference, social preference, self-identification and hetero/gay lifestyle. Columns, past, present, ideal. Here’s a matrix ranging from 1-7 ranging from other-sex only to same-sex only. There are two matrices. Putting them all together, you have this grid, using these two separate tables, you enter numbers into these 21 squares. Is this an unreasonable way to measure this?

H: It’s proven to be too burdensome. The researchers find, when they do statistical analyses, on most of these variables, they all correlate very highly with one another. So there’s a unified area of sexual orientation based on attraction, behavior and identity.

D: OK. Later on, it says their study validated this theoretical model. Do you believe they mischaracterized their results?

H: No, but later studies doing factor analysis have shown a core underlying dimension here. They weren’t misrepresenting data, but it’s been constantly subjected to further tests. And the tests have led to that underlying pattern. It might be useful to administer the Klein grid, but it’s burdensome to the respondent, and it doesn’t get you anywhere.

D: 21 boxes is too many?

H: More than necessary.

Let’s take a lunch break. I will resume with a new liveblog in an hour.

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David Dayen

David Dayen