Consumer Protection Laws May Prohibit Anti-Gay Discrimination

Consumer Protection Laws May Prohibit Anti-Gay Discrimination

Judge Prohibits Expert Testimony that Homosexuality is Illness

The judge in a New Jersey consumer fraud case has prevented defendants from introducing the expert testimony of six professionals, all of whom would have asserted that homosexuality is an illness that can be treated and remedied. Concluding that the “overwhelming weight of scientific authority concludes that homosexuality is not a disorder or abnormal,” Judge Peter F. Bariso, Jr. ruled that expert opinions to the contrary could not be allowed before a jury.

In the case that brought the ruling, Ferguson v. JONAH (Jews Offering New Alternatives to Homosexuality), six former patients of JONAH had filed suit under the New Jersey Consumer Fraud Act, accusing the agency of fraud, misrepresentation, deception, false pretense and false promise. They specifically alleged that the gay-to-straight counseling service had misrepresented:

  • That homosexuality is a mental illness
  • That persons paying for JONAH’s services could be “cured” of homosexuality within a specific time
  • That the service had a stated success rate
  • That JONAH had a program that could change a person’s sexual preference from homosexual to heterosexual

In support of his ruling, Judge Bariso wrote that expert testimony is acceptable only when there is adequate scientific support for it. Noting that the American Psychiatric Association removed homosexuality from the list of mental disorders over 40 years ago, as well as substantial other scientific research indicating that homosexuality was not a disease that could be treated, Judge Bariso concluded that the testimony would be inadmissible.

According to spokespersons for the plaintiffs, they specifically avoided challenging JONAH’s beliefs about homosexuality, as those are steeped in religious doctrine. Consequently, JONAH could not argue that its statements about homosexuality as a disease or disorder were expressions of religious freedom. Instead, attorneys emphasized the factual representations made in JONAH’s advertising and sought to demonstrate that those factual assertions were false and misleading. With the judge’s ruling, JONAH is unable to challenge testimony from plaintiff’s experts that homosexuality is a natural variation of human sexuality.

If the plaintiffs can demonstrate that the claims made by JONAH were false, they may be entitled to punitive, as well as compensatory, damages under the Consumer Fraud Act.

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