UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
DAVID PICKUP, et al. v. EDMUND G. BROWN, Jr., Governor of the State
of California, in his official capacity, et al.
1 DR. JOSEPH NICOLOSI REBUTTAL DECLARATION
3 I, Joseph Nicolosi, hereby declare as follows:
4 1. I am over the age of 18 years and am one of the Plaintiffs in this action. The statements in
5 this Declaration are true and correct and if called upon to testify to them I would and could do so
7 2. I am submitting this Declaration in rebuttal to the Declarations submitted by the State of
8 California when filing their Memorandum in opposition to Plaintiffs' Motion for a Preliminary
10 3. I have been a licensed psychologist in California since 1980. I have a Bachelor of Arts
11 Degree in Psychology from Long Island University. I received my Masters of Arts degree in
12 Psychology from the New School for Social Research and my Doctor of Philosophy in Clinical
13 Psychology from the California School of Professional Psychology. I am the Founder and
14 Clinical Director of Thomas Aquinas Psychological Clinic in Encino, California, which is a
15 clinic providing mental health counseling to 135 clients. Ninety percent of those clients are
16 individuals struggling with unwanted same-sex attractions and sixty percent are teenagers. While
17 the Clinic specializes in helping people with unwanted same-sex attractions, the four mental
18 health professionals providing service at the clinic do counsel on any issue for which the client is
19 seeking help. I am one of the three founding members and a former president of the National
20 Association for Research and Therapy of Homosexuality, which is a professional, scientific
21 organization that offers hope to those who struggle with same sex attractions by providing
22 information, counseling, research, and referrals. I have published numerous books, articles, and
23 other scholarly works on the topic of homosexuality and the course of treatment for those
24 individuals who seek to reduce or eliminate their unwanted same-sex attractions. In my practice,
DR. JOSEPH NICOLOSI REBUTTAL DECLARATION 2
1 I specialize in the treatment and counseling of males who struggle with unwanted same-sex
3 4. In addition to the numerous books and scholarly articles that I have written and the
4 extensive education I have received in the United States, I have also participated in numerous
5 international training seminars occurring all over the world in places including Germany, Italy,
6 England, Mexico, and Poland.
7 5. My background and experience in the field of clinical psychology and a list of my
8 published articles, books, and book chapters are described in my curriculum vitae, which is
9 attached to this Declaration as Exhibit A.
10 6. The Report of the American Psychological Association Task Force on Appropriate
11 Therapeutic Responses to Sexual Orientation ("Task Force"), which is relied upon by
12 Defendants' has countless methodological flaws and reaches erroneous conclusions because of
13 the ideological persuasion of the Task Force members who drafted it. The first evidence of the
14 flaws in the methodology behind the Task Force is that it included no practitioners of sexual
15 orientation change efforts ("SOCE") counseling. In fact, the APA rejected every practitioner of
16 SOCE counseling that applied for membership on the Task Force. Many of the applicants that
17 the APA rejected were prominent scholars in the field of same-sex attractions and SOCE
18 counseling, including A. Dean Byrd, Ph.D., George Rekers, Ph.D., Stanton Jones, Ph.D., Mark
19 Yarhouse, Ph .D., and me.
20 7. The APA violated long-established scientific principles by intentionally rejecting all
21 practitioners of SOCE and prohibiting the participation of individuals with differing views,
22 values, and practice. The scientific methodology used by the Task Force is flawed because the
23 only voices included in the Task Force are well known for their disapproval of any efforts by
DR. JOSEPH NICOLOSI REBUTTAL DECLARATION 3
1 homosexual individuals to seek change, even when those individuals seek such change in order
2 to live in accordance with their sincerely-held religious or moral beliefs. Even Defendants' own
3 witnesses attest to the need for objective and unbiased opinion when conducting a study of this
4 nature. In paragraph 30 of Gregory Herek's Declaration, he states that these studies "should be
5 conducted in a manner that is free from potential bias on the part of the experimenter."
6 Nevertheless, he ignores the fact that the chief study upon which he relies for his conclusions is
7 the Task Force, which was full of biased opinions and conclusions that were arrived at by a Task
8 Force comprised of individuals of the same ideology.
9 8. The scientific bias of the Task Force is evidenced by four specific factors. First, the Task
10 Force failed to review the well-documented psychological and medical health risks associated
11 with homosexual and bisexual behavior. Neil E. Whitehead, Homosexuality and Co-Morbidity:
12 Research and Therapeutic Implications, The Journal of Human Sexuality II, 156 (2010) (recent
13 studies have found "essentially the same suicide rates" for same-sex attracted people in the US as
14 other countries with decades of acceptance of people with same-sex attractions) (A copy of this
15 Article is attached as Exhibit B). Second, the Task Force failed to consider the factors associated
16 with the development of homosexual attractions and merely assumed that homosexuality is as
17 developmentally normal as heterosexuality. Yet, even Defendants' own experts concede that the
18 causes of homosexuality are unknown. (Dec!. Herek at para 14.) Third, the Task Force did not
Â 19 study individuals who reported success from SOCE counseling, apparently because it considered
20 change unnecessary and undesirable. Fourth, the Task Force elevated the standard for success in
21 treatment for unwanted same-sex attractions, and this standard is far higher than the standard for
22 success applicable to any other course of psychological treatment. Many other courses of
23 treatment also have notorious reputations for resistance to success, specifically courses of
DR. JOSPEH NICOLOSI REBUTTAL DECLARATION 4
1 treatment for narcissism, borderline personality disorder, and alcohol and drug abuse, but there is
2 no debate about the usefulness these courses of treatment. "The Task Force also criticized SOCE
3 studies on the grounds that the studies had high dropout rates. However, many treatment cohorts
4 have high dropout rates; take, for example, a drug and alcohol treatment program (Polich, Armor,
5 & Baker, 1981)." James E. Phelan, et aI., A Critical Evaluation of the Report of the Task Force
6 on Appropriate Therapeutic Responses to Sexual Orientation, Resolutions, and Press Release,
7 The Journal of Human Sexuality IV, 46 (2012) (A copy of this article is attached as Exhibit C).
8 Nevertheless, the Task Force ignored any potential comparison to these treatment options and
9 also ignored the fact that psychologists continue to engage in these courses of treatment despite
10 their uncertain outcomes. Additionally, these courses of treatment all continue with the blessing
11 of the APA and all of the other professional organizations that criticize SOCE counseling.
12 9. In paragraph 29 of Gregory Herek's Declaration, he also seeks to increase the burden on
13 SOCE counselors by defining success in any course of treatment as requiring that "it must
14 achieve its intended goals all or most of the time." If this standard applied to many other forms
15 of psychological treatment, then many widely-used and noncontroversial courses of treatment
16 would not qualify as effective. As mentioned in the previous paragraph, there are a number of
17 courses of treatment that have reputations for resistance to success, and no one seeks to apply
18 this heightened standard of near perfection to these courses of treatment. That the Task Force has
19 singled out SOCE alone for this absurd standard is itself strong evidence of the bias of its
20 members. Indeed, there would be no effective psychological courses of treatment if aU courses of
21 therapy were subjected to the standard espoused by Dr. Herek.
22 10. The Task Force flatly contradicts many points that specifically refute the assertions made
23 by Defendants' Declarations. On page two, the Task Force states that none of the recent research,
DR. JOSPEH NICOLOSI REBUTTAL DECLARATION 5
1 which are all studies from 1999-2007, meet the methodological standards for determining the
2 efficacy, safety, or dangers of SOCE counseling. This undermines Defendants' assertions that
3 SOCE counseling is harmful to minors. Just as the research allegedly fails to prove SOCE's
4 efficacy, the Task Force concedes it fails to prove any concrete harm. See Ex. C, Journal of
5 Human Sexuality IV at 57-58. Furthermore, on page 25, the Task Force concedes that there
6 needs to be more research and analysis of the potential benefits or dangers of SOCE counseling.
7 In fact, on page 42, the Task Force specifically found that there was a dearth of information
8 based on sound scientific research concerning the safety of SOCE counseling. The dearth of
9 scientific study prevents Defendants' blanket assertions that SOCE counseling is in fact harmful
10 to minors and should therefore be prohibited. This is reinforced by the Task Force on page 44
11 when it states that "[b ]ecause of the lack of empirical research in this area, the conclusions must
12 be viewed as tentative." Indeed, on page 11, the Task Force admitted that "recent research cannot
13 provide conclusions regarding efficacy or safety."
14 11. On page 18, the Task Force implies that by striving to live a life consistent with their
15 religious values, people with same-sex attractions must deny their true sexual selves. This further
16 implies that individuals with sincerely-held religious beliefs that lead them to seek a reduction or
17 elimination of their unwanted same-sex attractions will not experience organismic wholeness,
18 self-awareness, and mature development of their personal identity. Those religious individuals
19 who seek to live in conformity to their religious values are assumed to experience a constriction
20 of their true selves because of a religiously imposed behavioral control. This false distinction,
21 created by the Task Force, ignores the desire of many clients to live in congruence with the
22 fundamental tenets of their sincerely-held religious and moral beliefs. For these individuals, the
23 values they hold because of their religious beliefs are viewed as guideposts and sources of
DR. JOSEPH NICOLOSI REBUTTAL DECLARATION 6
1 inspiration that help guide them on their pursuit of wholeness, and wholeness for these people
2 can only be achieved by living in congruence with their religious beliefs.
3 12. The Task Force seeks to diminish the beliefs of these individuals by suggesting that
4 religious beliefs should be reconstructed to align with their unwanted same-sex attractions rather
5 than working to conform their sexual identity to their religious beliefs. On pages 72-73, the Task
6 Force recognizes that many clients seek SOCE counseling because of their religious beliefs. On
7 page 58, the Task Force then states that therapy is a "process of uncovering and deconstructing
8 dominant worldviews and assumptions with conflicted clients that enable them to redefine their
9 attitudes toward their spirituality and sexuality." The Task Force ignores the fact that many
10 people desire to elevate their religious beliefs above any unwanted same-sex attractions and that
11 they seek counseling to assist them with this goal. The Task Force states that counseling for
12 individuals in this category should focus on "refram[ing] the religious beliefs to focus on aspects
13 of faith that encourage love and acceptance of their child rather than on a religion's
14 prohibitions." The Task Force's position is based on the unproven assumption that
15 homosexuality is inborn and immutable. See Ex. C, Journal of Human Sexuality IV at 57 (noting
16 that the Task Force based its conclusions on an "a priori assumption that homosexuality is
17 inborn and therefore immutable" which is unsupported by it's the Task Force's own statements).
18 The Task Force's position dates back to the 1970s when "on the basis of emerging scientific
19 evidence and encouraged by the social movement for ending sexual orientation discrimination,
20 the American Psychological Association and other professional organizations affirmed that
21 homosexuality per se is not a mental disorder." See Task Force at 11. This undermines the basis
22 for SB 1172 and the Task Force's conclusions because it reveals that the APA's change in
23 position and its assumptions that homosexuality is immutable were based on political and social
DR. JOSEPH NICOLOSI REBUTTAL DECLARATION 7
1 pressure not concrete scientific evidence. This is further evidenced by the fact that Defendants'
2 own witnesses and the Task Force are inconsistent in defining sexual orientation. Dr. Herek
3 describes sexual orientation as an "enduring pattern of or disposition to experience sexual,
4 affectional, or romantic desires for and attraction towards men, women, or both sexes." (Herek
5 Decl. para. 8). On page 30, the Task Force defines sexual orientation as "an individual's patterns
6 of sexual, romantic, and affectional arousal and desire for other persons based on those persons'
7 gender and sexual characteristics." The Task Force does not define sexual orientation as
8 enduring, which reveals that these definitions are not based on any universally recognized or
9 consistently applied scientific standard. Additionally, on page two, the Task Force recognized
10 that "[s]ame-sex sexual attractions and behavior occur in the context of a variety of sexual
11 orientations and sexual orientation identities, and for some, sexual orientation identity (i.e.,
12 individual or group membership and affiliation, self-labeling) is fluid or has an indefinite
13 outcome." Given the mental health professions' inability to provide a concrete definition of
14 sexual orientation, there is potentially no limit to what could fall into its definition. The
15 vagueness in the understanding itself of what is encompassed by "sexual orientation" results in a
16 variety of understanding of its meaning and includes pederasty, which is homosexual
17 relationship between a young man and a pubescent boy outside his immediate family, or
18 pedophilia, or a host of other paraphilias or fetishes. This presents a difficult problem for a
19 mental health counselor tasked with complying with SB 1172 when the definition of "sexual
20 orientation" is fluid and vague.
21 13. Focusing on reframing an individual's religious beliefs is beyond the purview of
22 psychological counseling, and it ignores the most fundamental principle of the profession-
23 namely, that the client has the right to self-determination. SB 1172 explicitly states that it is
DR. JOSEPH NICOLOSI REBUTTAL DECLARATION 8
1 relying on the conclusions of the Task Force and Defendants' Declarations focus solely on the
2 conclusions of it and other studies that are methodologically flawed. This reveals the flaws of SB
3 1172 and specifically shows that it is aimed at reframing an individual's religious perspectives
4 deemed antiquated or discriminatory and imposing an ideology on those individuals that do not
5 wish to live in conformity with the view espoused by SB 1172 and the Task Force. The Task
6 Force also states on page 19 that "prejudices directed at individuals because of their religious
7 beliefs and prejudice derived or justified by religion are harmful to individuals, society, and
8 international relations." This further reveals that the Task Force and SB 1172 attempt to elevate
9 sexual orientation above a person's sincere religious beliefs and shows that SB 1172 specifically
10 targets those individuals that have religious beliefs opposed to homosexuality.
11 14. The Beckstead Declaration also seeks to stretch the extent of the APA's position
12 regarding SOCE counseling. In paragraph 18 of his Declaration, he states that the APA "remains
13 resolved that SOCE are unnecessary and harmful, and should not be promoted or offered." This
14 statement, however, does not accurately reflect what the APA stated in its public statement about
15 SOCE; the APA only said that "LGBT youth and families should avoid treatment that
16 characterizes homosexuality as a mental illness or developmental disorder." Cal. Stats., 2012,
17 l(c). (emphasis added). Nowhere does the APA state that SOCE counseling should never be
19 15. The Beckstead Declaration also argues for a further violation of a fundamental principle
20 of psychological treatment. In paragraph 20 of his Declaration, Dr. Beckstead makes the
21 assertion that treatment should not attempt to change sexual orientation but instead focus on
22 changing the client's beliefs about therapy and SOCE counseling. This certainly violates the
DR. JOSEPH NICOLOSI REBUTTAL DECLARATION 9
1 fundamental right of the patient to self-determination to seek therapy that will help him achieve
2 his goals.
3 16. Concerning the alleged harm that SOCE can cause a patient, the Herek Declaration and
4 the Beckstead Declaration are inconsistent. In paragraphs 22-23 of the Beckstead Declaration, he
5 alleges that a variety of serious harms result from SOCE. Nevertheless, in paragraph 40 of the
6 Herek Declaration, he properly asserts that the reports of these alleged harms are not the result of
7 scientifically controlIed studies. In fact, as Herek points out, the reports of alleged harm all come
8 from questionnaires and other anecdotal reports-the type of "studies" the Task Force deemed
9 improper to rely on to show effectiveness of SOCE.
10 17. In paragraph 25 of the Beckstead Declaration, he asserts that SOCE literature focuses
11 solely on the positive effects of SOCE counseling and ignores the alleged harms that have been
12 reported in some literature. His notion that this is similar to providing medicine without a
13 detailed description of the potential side effects ignores the benefit of the significant disclosures
14 Plaintiffs provide to those seeking SOCE counseling before ever engaging in that course of
15 treatment with them.
16 18. Dr. Beckstead's Declaration and assertions are based on his unsubstantiated belief that
17 same-sex attractions are the result of biology. (Beckstead Dec!. para. 12). The position that
18 "sexual orientation is tied to physiological drives and biological systems that are beyond the
19 conscious choice ... contradicts the APA's own public-disseminated information regarding
20 sexual orientation and etiology, which says:
21 There is no consensus among scientists about the exact reasons that an individual
22 develops a heterosexual, bisexual, gay or lesbian orientation. Although much research
23 has examined the possible genetic, hormonal, developmental, social, and cultural
24 influences on sexual orientation, no findings have emerged that permit scientists to
25 conclude that sexual orientation is determined by any particular factor or factors.
26 Many think that nature and nurture both play complex roles. (APA, 2008b, p.2)
DR. JOSEPH NICOLOSI REBUTTAL DECLARATION 10
2 19. I declare under penalty of perjury of the laws of the United States and California
3 that the foregoing statements are true and accurate.
4 Executed this 16th day of November 2012.
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And when they were come to Capernaum, they that received tribute money came to Peter, and said, Doth not your master pay tribute? He saith, Yes. And when he was come into the house, Jesus prevented him, saying, What thinkest thou, Simon? of whom do the kings of the earth take custom or tribute? of their own children, or of strangers? Peter saith unto him, Of strangers. Jesus saith unto him, Then are the children free. (Matthew 17:24-26)