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On Writ Of Certiorari To The Supreme Court
Of The State Of Colorado
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BRIEF AMICUS CURIAE OF
THE AMERICAN PSYCHOLOGICAL ASSOCIATION,
THE AMERICAN PSYCHIATRIC ASSOCIATION,
THE NATIONAL ASSOCIATION OF SOCIAL WORKERS, INC.,
AND THE COLORADO PSYCHOLOGICAL ASSOCIATION.
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TABLE OF CONTENTS

TABLE OF AUTHORITIES

INTEREST OF AMICI CURIAE

STATEMENT OF FACTS

INTRODUCTION AND SUMMARY OF ARGUMENT

ARGUMENT

I. THE NATURE OF SEXUAL ORIENTATION
A. The Definition Of Sexual Orientation

B. The Prevalence Of Homosexual Orientation

C. The Development Of Sexual Orientation

D. Can Sexual Orientation Be Changed?

E. Hoosexuality Is Not A Disorder And Does Not Affect One's Ability To Contribute To Society

II. GAY PEOPLE HAVE LONG FACED INTENSE PREJUDICE AND DISCRIMINATION BASED ON IGNORANCE AND STEREOTYPES

A. History And Prevalence Of Prejudice And Discrimination Against Gay People

B. The Nature Of Anti-Gay Prejudice

C. Effects Of Prejudice And Discrimination

CONCLUSION

INTEREST OF AMICI CURIAE[1]

The American Psychological Association, a scientific and professional organization founded in 1892, is the major association of psychologists in the United States.It has more than 120,000 members and affiliates, including the vast majority of psychologists holding doctoral degrees from accredited universities in the United States.The Colorado Psychological Association, founded in 1946, represents more than 700 psychologists in the State of Colorado. The American Psychiatric Association, founded in 1844, is the Nation's leading organization of physicians specializing in psychiatry, with approximately 40,000 members.The National Association of Social Workers ("NASW") was established in 1955 as a nonprofit professional association.It is the largest social-work association in the world, with more than 160,000 members.Together, the four amici represent the majority of mental health care providers in this country.

Amici submit this brief to bring to this Court's attention the principal body of professional research pertinent to the questions posed in this case.Gay men and lesbians have been subjected to widespread discrimination based on prejudice, myths, and stereotypes.[2] Amici believe that this Court's consideration of this case will be aided by presentation of the literature demonstrating the baselessness of, and harms caused by, such discrimination.

Amici have publicly and formally urged the elimination of irrational discrimination against gay men and lesbians on many occasions.Beginning in 1975, the Council of Representatives of amicus American Psychological Association passed a series of resolutions urging that gay men and lesbians not be discriminated against in employment, housing, licensing, public accommodation, and child custody. [3] In 1988, the association approved a resolution recognizing the "profound psychological consequences" of "hate crimes" motivated by anti-gay prejudice and urging governmental action to reduce such bias-related crimes and to eliminate "policies that perpetuate them." [4] The following year, the organization reaffirmed "its opposition to laws criminalizing consensual adult sexual behavior in private." [5] On August 22, 1993, the Association's Council of Representatives passed a resolution condemning Amendment 2 and any other state-law provisions purporting to bar legislation against sexual-orientation discrimination, declaring that "there is no basis for such discrimination and such discrimination is detrimental to mental health and the public good."[6]

Amicus American Psychiatric Association in 1973 formally declared that homosexuality "does not constitute a psychiatric disorder"[7] and "implies no impairment in judgment, stability, reliability, or general social or vocational capabilities."[8] The organization opposed "all public and private discrimination against homosexuals in such areas as employment, housing, public accommodation, and licensing" and urged the repeal of laws "singling out homosexual acts by consenting adults in private" and the enactment of laws affording "homosexual citizens the same protections now guaranteed to others on the basis of race, creed, color, etc.," citing "the pervasive discriminatory acts directed against this group and the arbitrary and discriminatory laws directed against homosexual behavior."[9] The American Psychiatric Association has opposed "exclusion and dismissal from the armed services on the basis of sexual orientation" and the placement on homosexuals of any special "burden of proof of judgment, capacity, or reliability";[10] has opposed "the discriminatory exclusion of homosexual visitors and immigrants to the United States";[11] and has supported "the right to privacy in . . . adult consensual sexual relations conducted in private."[12] In 1992, the organization reaffirmed that "homosexuality per se implies no impairment in judgment, stability, reliability, or general social or vocational capabilities" and called for the repeal of laws penalizing private adult homosexual acts and the taking of action "to decrease the stigma related to homosexuality wherever and whenever it may occur." [13]

Amicus National Association of Social Workers has likewise formally opposed discrimination against gay men and lesbians.In 1977, the NASW adopted its first policy statement on gay issues,[14] which was subsequently revised and expanded in 1987[15] and again in 1993.[16] As noted in the 1993 statement, the NASW Code of Ethics prohibits social workers from discriminating on the basis of sexual orientation in their professional roles.[17] The current NASW policy also affirms the association's commitment "to work toward full social and legal acceptance and recognition of lesbian and gay people."[18] Other professional organizations have adopted similar policies. [19]

STATEMENT OF FACTS

On November 3, 1992, a majority of Colorado voters approved a state constitutional amendment ("Amendment 2") that provides:

NO PROTECTED STATUS BASED ON HOMOSEXUAL, LESBIAN, OR BISEXUAL ORIENTATION.Neither the State of Colorado, through any of its branches or departments, nor any of its agencies, political subdivisions, municipalities or school districts, shall enact, adopt or enforce any statute, regulation, ordinance or policy whereby homosexual, lesbian or bisexual orientation, conduct, practices or relationships shall constitute or otherwise be the basis of, or entitle any person or class of persons to have or claim any minority status, quota preferences, protected status or claim of discrimination.This Section of the Constitution shall be in all respects self-executing.

Colo. Rev. Stat., Const. art. II, § 30b (1994 Supp.).

The Amendment by its terms prevents the State or any of its political subdivisions from adopting any law protecting gay men, lesbians, and bisexuals against discrimination -- apparently leaving the State and its subdivisions at liberty to adopt policies that do discriminate against gay men, lesbians, and bisexuals. Amendment 2 on its face does not apply neutrally to sexual orientation of all kinds (homosexual, bisexual, and heterosexual).It had the specific purpose and effect of amending a number of existing laws and policies that safeguarded Coloradans against discrimination based on sexual orientation by deleting those protections as applied to gay men, lesbians, and bisexuals.The Amendment, if enforced, also would preclude state and local public entities throughout Colorado from adopting any new remedies for anti-gay discrimination.

On November 12, 1992, respondents filed suit in Colorado state court under 42 U.S.C. § 1983, challenging the constitutionality of Amendment 2.The Denver District Court granted the respondents' motion for a preliminary injunction against the enforcement of Amendment 2.See Pet. App. E.In Evans v. Romer, 854 P.2d 1270 (Colo.), cert. denied, 114 S. Ct. 419 (1993), the Colorado Supreme Court affirmed the entry of the preliminary injunction, and held that Amendment 2 is subject to strict scrutiny because it "fences out" an independently identifiable class of persons and infringes upon their fundamental right to participate equally in the political process, a right protected by the Equal Protection Clause of the Fourteenth Amendment. Id. at 1282-83, 1285 (citing Reynolds v. Sims, 377 U.S. 533 (1964), Hunter v. Erickson, 393 U.S. 385 (1969), and their progeny) (Pet. App. D-25 to D-27).

Following an eight-day trial, the district court permanently enjoined the enforcement of Amendment 2.See Pet. App. C.The Colorado Supreme Court again affirmed, holding that Amendment 2 was subject to strict scrutiny and was not narrowly tailored to serve any compelling governmental interest.Evans v. Romer, 882 P.2d 1335, 1350 (Colo. 1994) (Pet. App. B-24). Because the Colorado Supreme Court held that Amendment 2 infringes on a fundamental right and is therefore subject to strict scrutiny, it did not address respondents' argument that Amendment 2 should be invalidated even under the rational-basis test.See id. at 1341 n.3 (Pet. App. B-6 n.3).

INTRODUCTION AND SUMMARY OF ARGUMENT

This case involves two legal standards.First, based on this Court's decision in Hunter v. Erickson, supra, the Colorado Supreme Court concluded that gay men, lesbians, and bisexuals constitute an "independently identifiable group" whose right to participate equally in the political processes of Colorado and its subdivisions would be infringed by the enforcement of Amendment 2.882 P.2d at 1341, 1349-50 (Pet. App. B-7, B-24). An "identifiable group" has been described as one "defined in terms of some characteristic that is not ordinarily a legitimate basis for the allocation of political authority." Cass R. Sunstein, Homosexuality and the Constitution, 70 Ind. L.J. 1, 11 (1994).

Second, respondents argue that Amendment 2 can be invalidated under rational-basis review.See City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432 (1985).[20] Under that standard, government action fails to pass muster not only if it lacks a "footing in the realities of the subject addressed by the legislation," Heller v. Doe, 113 S. Ct. 2637, 2643 (1993), but also if it is based predominantly on invidious prejudice or unreasoned antipathy, or if it reflects blind adherence to unfounded stereotypes.See Cleburne, 473 U.S. at 446-47 (the "bare . . . desire to harm a politically unpopular group" is never a legitimate state interest (internal quotation marks omitted)); id. at 448-50 ("mere negative attitudes," "vague, undifferentiated fears," "irrational prejudice," and "'[p]rivate biases'" are not permissible bases for discriminatory state action (quoting Palmore v. Sidoti, 466 U.S. 429, 433 (1984))); Stanton v. Stanton, 421 U.S. 7, 13-15 (1975) ("role-typing" and "old notions" cannot provide a rational basis for a discriminatory state law); see also Zobel v. Williams, 457 U.S. 55, 61-63 (1982); USDA v. Moreno, 413 U.S. 528, 534-35 (1973).

In this brief, amici present two bodies of scholarly literature that are relevant to the Court's consideration of these issues.We begin with a discussion of the latest scientific research on the nature of sexual orientation.This research firmly and consistently rejects the widespread assumptions that sexual orientation is the same as sexual conduct, that sexual orientation is freely chosen and readily subject to alteration, and that homosexual or bisexual orientation is a mental disorder causing impairment of psychological or social functioning.

We then discuss the literature on prejudice and discrimination against gay people.Prejudice directed against gay people as a group has led to harmful, and sometimes violent, acts of purposeful discrimination.Measured by a variety of standards -- from research on public attitudes to statistics on hate crimes -- lesbians and gay men remain subject to intense societal prejudice and discrimination, both public and private, largely growing out of inaccurate stereotypes and causing serious harm.

ARGUMENT

I. THE NATURE OF SEXUAL ORIENTATION.

A. The Definition Of Sexual Orientation.

Behavioral and social scientists commonly identify sexual orientation as one of several distinct but related components of human sexuality.[21] Sexual orientation refers to the tendency to experience erotic or romantic responses to men, women, or both, and the resulting sense of oneself.[22] Sexual orientation is generally classified as heterosexual, bisexual, or homosexual, with the range sometimes viewed as a continuum. [23] Sexual orientation has a number of aspects, including experiencing an ongoing attraction to persons of a particular gender; developing a private personal identity or self-concept as heterosexual, gay, lesbian, or bisexual; establishing a public identity based on sexual orientation; and identifying with a community of those who share the same sexual orientation.[24]

Sexual orientation is distinct from sexual conduct.[25] The fact that a person engages in same-sex sexual activity, other-sex sexual activity, both, or neither is not sufficient to determine his or her sexual orientation; indeed, "[a]ny definition of sexuality based solely on behavior is bound to be deficient and misleading."[26] Thus, many individuals who identify themselves as gay or lesbian, or who are predominantly attracted to members of the same sex, nonetheless engage in other-sex sexual behavior.[27] Similarly, many persons who identify themselves as heterosexual engage in same-sex sexual behavior.[28] As in the case of heterosexuals, some people who identify themselves as gay or lesbian do not engage in any sexual activity at all. [29] Some gay male and lesbian relationships, again like their heterosexual counterparts, do not include an overtly sexual component. [30]

B. The Prevalence Of Homosexual Orientation

Few generalizable estimates exist of the prevalence of homosexual orientation in the United States.[31] Among existing surveys on sexuality, estimates differ substantially depending upon (among other things) whether the researcher inquires into same-sex sexual conduct, sexual orientation measured in terms of enduring attraction, or self-reported sexual identity.The renowned study of sexuality recently released by the National Opinion Research Center at the University of Chicago is illustrative. In that survey, 4.9% of men and 4.1% of women reported having had sex with a same-sex partner since age eighteen.[32] A larger proportion of respondents -- 7.7% of the men and 7.5% of the women -- reported experiencing attraction to persons of their own sex, considering the prospect of sex with a same-sex partner appealing, or both.[33] When respondents were asked whether they thought of themselves as "heterosexual, homosexual, bisexual, or something else," 2.8% of the male respondents and 1.4% of the female respondents identified themselves as "homosexual" or "bisexual." [34] The Chicago researchers found a significantly higher prevalence of self-reported homosexual or bisexual identity (9.2% for men, 2.6% for women) among residents of the twelve largest American cities.[35]

C. The Development Of Sexual Orientation

Current professional understanding is that the core feelings and attractions that form the basis for adult sexual orientation typically emerge by early adolescence. [36] For some people, adult homosexual orientation is predictable by early childhood. [37] Developmental precursors of adult homosexual orientation, however, have not been consistently identified for the population as a whole. [38]

A number of researchers have found familial patterns and biological correlates of adult homosexual orientation, suggesting that genetic, congenital, or anatomical factors may contribute to its development.For example, recent studies have indicated a linkage between certain aspects of DNA and sexual orientation.[39] Studies of identical twins have found that "heritabilities were substantial under a wide range of assumptions." [40] Another study, as yet unreplicated, reported differences between heterosexual and gay men in the volume of a cell group in the anterior hypothalamus, a brain structure that is involved in sexual behavior.[41] A study published earlier this year suggests that women who had been exposed to certain prenatal estrogens are more likely to be lesbian or bisexual.[42] Another study has suggested an "interactionist" model, under which "genetic factors can be conceptualized as indirectly influencing the development of sexual orientation." [43]

The available studies of gay experience indicate that same-sex attractions generally emerge by early or mid-adolescence. [44] "By the time boys and girls reach adolescence, their sexual preference is likely to be already determined, even though they may not yet have become sexually very active."[45] The scientific literature thus strongly indicates that sexual orientation is far from being a voluntary choice.[46]

D. Can Sexual Orientation Be Changed?

The research and clinical experience of amici's members indicates that, once established, sexual orientation is resistant to change.Although there are some reports of therapy leading to changed sexual orientation, there is little evidence that treatment actually changes sexual attractions, as opposed to reducing or eliminating same-sex sexual behavior.Upon reviewing reports on "conversion therapy," one scholar concluded that -- entirely aside from the ethical concerns relating to any such therapy -- there is no reliable evidence that "sexual orientation is amenable to redirection or significant influence from psychological intervention."[47]

E. Homosexuality Is Not A Disorder And Does Not Affect One's Ability To Contribute To Society.

The psychiatric, psychological, and social-work professions do not consider homosexual orientation to be a disorder. [48] More than twenty years ago, amicus American Psychiatric Association removed "homosexuality" from its list of mental disorders, stating that "homosexuality per se implies no impairment in judgment, stability, reliability, or general social or vocational capabilities."[49] In 1975, amicus American Psychological Association took the same position, and urged all mental health professionals to help dispel the stigma of mental illness that had long been associated with homosexual orientation.[50] Amicus National Association of Social Workers has a similar policy.[51]

The declassification of homosexual orientation as a mental disease reflects the results of extensive research, conducted over three decades, showing that homosexual orientation is not a psychological maladjustment.[52] A comprehensive literature on the subject demonstrates that "theories contending that the existence of differences between homosexuals and heterosexuals implies maladjustment are irresponsible, uninformed, or both."[53] It is well established that "homosexuality in and of itself bears no necessary relationship to psychological adjustment." [54] The social and other circumstances in which lesbians and gay men live, including exposure to widespread and intense prejudice and discrimination, often cause acute distress; but there is no reliable evidence that homosexual orientation per se impairs psychological functioning[55] or workplace functioning.[56]

The literature also undermines negative assumptions about gay men and lesbians as parents.One study commented: "The most striking feature of the research on lesbian mothers, gay fathers, and their children is the absence of pathological findings.The second most striking feature is how similar the groups of gay and lesbian parents and their children are to the heterosexual parents and their children that were included in the studies."[57] And being raised by gay parents does not appear to cause homosexual orientation.[58]

II. GAY PEOPLE HAVE LONG FACED INTENSE PREJUDICE AND DISCRIMINATION BASED ON IGNORANCE AND STEREOTYPES.

Sexual orientation (whether heterosexual, homosexual, or bisexual) not only is a fundamental facet of one's experience and sense of self, but has long had immense social, and therefore personal, consequences.In a society in which the vast majority of people are not gay, and often intensely disapprove of those who are,[59] homosexual orientation that is or might be readily known to other people has enormous social implications.Homosexual orientation often becomes the predominant social identifier of gay people.[60] Particularly in places in which openly gay people are few, a gay man or lesbian is likely to be thought of distinctly in terms of his or her sexual orientation, even in settings in which it is not demonstrably relevant.[61] As a result, "the experience of being gay, lesbian, [or] bisexual in American society today continues, to a large extent, to be defined by the requirement to cope with the negative effects of prejudice against homosexuality."[62]

A. History And Prevalence Of Prejudice And Discrimination Against Gay People

The Denver District Court correctly observed that there is a long "history of discrimination against homosexuals." Pet. App. C-18.Gay people historically have been subject to intense prejudice and discrimination, both public and private. Extreme prejudice and even persecution were common in Europe from at least the Middle Ages.[63] Here in America, social prejudice and discrimination against lesbians and gay men have been widespread since colonial times. [64] Indeed, "lesbians and gay males have been the object of some of the deepest prejudice and hatred in American society." [65]

In the early and mid-twentieth century, the mental health professions' adherence to the "illness model" of homosexual orientation -- developed at least partly in an effort to displace the depravity/immorality model[66] -- probably encouraged the development of bizarre, inhumane, and sometimes brutal "treatments" and "aversion therapies" for homosexual orientation.[67] In the 1940s and 1950s, gay people were often viewed and sometimes targeted as "sexual psychopaths."[68] And, until 1990, gay people were frequently excluded from the United States under an immigration statute denying entry to persons "afflicted with psychopathic personality, or sexual deviation." [69]

Intense prejudice against lesbians and gay men remains prevalent in contemporary American society.Public opinion studies of attitudes towards lesbians and gay men indicate that, among large segments of the public, gay people are the subject of strong antipathy.[70] Verbal abuse is common.[71] Discrimination against gay people in such critical areas as employment and housing remains lawful in most jurisdictions, and appears to be widespread.[72] High rates of specifically anti-gay violence or "hate crimes" have been consistently documented.[73]

B. The Nature Of Anti-Gay Prejudice

Most heterosexuals' negative attitudes toward lesbians and gay men are not based on personal experience with gay people.Only one in three Americans has a friend, relative, or acquaintance who is known by them to be lesbian or gay.Anti-gay attitudes have been found to be significantly less common among that one-third of the population.[74] Several studies indicate that correction of inaccurate assumptions about lesbians and gay men often leads to a reduction in antipathy. [75]

Likewise, research has shown that many people base their opinions about gay people on an entrenched set of negative assumptions.Both gay men and lesbians are often associated with cross-sex characteristics."Additionally, significant numbers of individuals characterize male homosexuals as mentally ill, promiscuous, lonely, insecure, and likely to be child molesters, while lesbians have been described as aggressive and hostile toward men."[76]

These images represent crude stereotypes. For example, although gay men have been stigmatized with the allegation that they are disproportionately responsible for child sexual abuse,[77] there is no evidence of any positive correlation between homosexual orientation and child molestation.[78] Similarly, despite stereotypes to the contrary, gay men and lesbians often form committed relationships that share principal elements of heterosexual marital relationships,[79] that are based on deep emotional attachments,[80] and that endure for decades.[81]

C. Effects Of Prejudice And Discrimination

When prejudice against lesbians and gay men takes the form of violence or discrimination, it can have such tangible consequences as physical injury or lost employment. The harmful effects of prejudice, discrimination, and violence, however, are not limited to such bodily or pecuniary consequences. Amici's members have long experience with the adverse psychological effects suffered by people who have an immediate and personal confrontation with anti-gay prejudice -- whether in the form of verbal harassment from strangers, derision from family or coworkers, physical threats, or violent attack.The effects can include depression, a persistent sense of vulnerability, and efforts to rationalize the experience by viewing one's victimization as just punishment.[82] Gay people, like members of other groups that are subject to social prejudice, also frequently come to internalize society's negative stereotypes.Psychologists, psychiatrists, and social workers are particularly concerned about the harms that internalized social stigma can produce in gay adolescents who are newly becoming aware of their sexual orientation.[83]

The stigma and ill treatment that attach merely to acknowledging homosexual orientation lead many gay people to remain "in the closet."[84] Concealing one's sexual orientation, or attempting to avoid association with other gay people, commonly tends to compound psychological distress.As explained in one recent review of the research literature,

[p]sychological adjustment appears to be highest among men and women who are committed to their gay identity and do not attempt to hide their homosexuality from others.As with other stigmatized minorities, gay men and lesbians probably maintain self-esteem most effectively when they identify with and are integrated into the larger gay community. Conversely, people with a homosexual orientation who have not yet come out, who feel compelled to suppress their homoerotic urges, who wish that they could become heterosexual, or who are isolated from the gay community may experience significant psychological distress, including impairment of self-esteem.Chronically hiding one's sexual orientation can create a painful discrepancy between public and private identities, feelings of inauthenticity, and social isolation.[85]

The "daily need to hide an important aspect of . . . personal and social identity" operates as a "corrosive denial[] of self-respect and self-worth."[86] For some, social stigma turns into feelings of personal inferiority or self-hatred.[87] Government measures that foster such stigma, as by pointedly foreclosing opportunities for political participation for gay people, only exacerbate those psychological harms.[88]

CONCLUSION

To the extent that Amendment 2 rests on baseless stereotypes about gay people, and reflects the sort of historically rooted antipathy still common in our society, it threatens to compound the serious problems gay people face as a result of irrational discrimination, and the decision of the Colorado Supreme Court should be affirmed.

Respectfully submitted,

Richard G. Taranto FARR & TARANTO 2445 M Street, N.W. Washington, D.C. 20037 (202) 775-0184	Paul M. Smith* JENNER & BLOCK 601 Thirteenth Street, N.W. Washington, D.C. 20005 (202) 639-6000
Counsel for Amicus American Psychiatric Association	James L. McHugh, Jr. General Counsel AMERICAN PSYCHOLOGICAL ASSOCIATION 750 First Street, N.E. Washington, D.C.20002 (202) 336-5500
Carolyn I. Polowy General Counsel NATIONAL ASSOCIATION OF SOCIAL WORKERS, INC. 750 First Street, N.E. Washington, D.C.20002 (202) 408-8600	Counsel for Amici American Psychological Association and Colorado Psychological Association
Counsel for Amicus National Association of Social Workers, Inc.	*Counsel of Record