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article imageOp-Ed: Supreme Court Must Look at LGBTQ+ Mental Health Issues

By Karen Edwards     Apr 3, 2013 in Science
Continuing to evade this historically divisive issue is simply no longer possible. The Supreme Court of the United States (SCOTUS) must consider the issue of mental health in all its LGBTQ+ deliberations.
LGBTQ+ is a term I recently coined to provide a more precise, accurate and neutral descriptor when characterizing the diverse sentiments expressed towards members of the LGBTQ+ community or towards LGBTQ+ behaviors and practices.
LGBTQ+ refers to lesbian, gay, bisexual, intersex, transexual, transgender, third sex, queer and questioning folk as well as all others similarly identified under other such acronyms here and elsewhere in the world.
Unlike LGBTQ+; descriptors like homosexuality and homosexual are sometimes considered tainted terms.
Homosexuality was once certifiable as a crime against nature and diagnosable as a form of mental illness. More simply put; historically homosexuality was conduct to be prohibited. It was to be legally prosecuted if necessary and medically eradicated if possible.
Based on nomenclature derived from the original 1952 Diagnostic and Statistical Manual of Mental Disorders(DSM); homosexuality was one of the classifications used by mental health professionals to diagnose all homosexuals as a "sociopathic personality disorder" with a "sexual deviation".
To be a homosexual was to automatically be deemed a criminal and a sexual deviant.
By the publication of second edition of the DSM in 1968; homosexuality was no longer medically classified as a "sociopathic personality disorder" but retained its classification as a "sexual deviation".
However, it was not until 1973 in an auxillarly document that the American Psychiatric Association began to more systematically declassify the term homosexuality as a mental disorder by first retiring the classification of ego syntonic homosexuality from the DSM.
Ego syntonic homosexuality refers to the persistent lack of heterosexual arousal with same gender sexual arousal that is comfortable or desirable.
However, the diagnosis of ego dystonic homosexuality still appeared in the 1980 Diagnostic and Statistical Manual of Mental Disorders (DSM-III) albeit parenthetically side-by-side, next to the then newly introduced diagnostic classification of sexual orientation disorder.
Ego dystonic homosexuality refers to the persistent lack of heterosexual arousal with same gender sexual arousal that is uncomfortable or undesirable.
The diagnostic classification of sexual orientation disorder did not become totally sexual orientation or gender orientation free until 1986 with the publication of the DSM-IV.
So nowadays, the term homosexuality is no longer synonymous with a diagnosis of a mental disorder of any kind not even parenthetically since both LGBTQ+ and non-LGBTQ+ folks alike may potentially qualify for a diagnosis such as sexual orientation disorder.
Following the American Psychiatric Association's (1973) lead; the American Psychological Association (1975) and the World Health Organization (1990) began to adopt similar positions regarding the LGBTQ+ community, behaviors and practices.
As such, the term homosexuality has not been medically defined as either a sociopathic personality disorder or a sexual deviation for more than 25 years now here in the United States.
A contentious point to some; however, LGBTQ+ behaviors and practices are not nor have they ever been officially sanctioned by the American Psychiatric Association as a "normal variant" of human sexuality. As such, there is still no overall psychological consensus regarding the mutability or immutability of homosexuality.
Given this other than normal variant status still; it remains to be seen whether the Supreme Court will treat LGBTQ+ persons, behaviors and practices as a form deviancy still akin to consensual adult incest, polygamy and so on or perhaps just as some kind of undesirabe state still to be justifiably prohibited by law from the right to marry others of the same gender. Or will the SCOTUS take some entirely different view?
The major psychiatric and psychological associations here in the United States have both gone on record to advocate for the elimination of all forms of discrimination against LGBTQ+ folks even though neither provides an official position statement on the rights of LGBTQ+ folk to marry someone of the same gender.
In the Hollingworth v Perry case, the Proposition 8 case transcript of the oral arguments; Justice Sonia Sotomayor was the first to broach this very topic.
Addressing the attorney for the respondent Theodore Olson who supports the rights of LGBTQ+ folks to marry folks of the same gender; Justice Sotomayor asked "Mr. Olson, the bottom line that you're being asked -- and -- and it is one that I'm interested in the answer, if you say that marriage is a fundamental right, what State restrictions could ever exist? Meaning, what State restriction with respect to the number of people, with respect to -- that could get married -- the incest laws, the mother and child, assuming they are of age -- I can --I can accept that the State has probably an overbearing interest on -- on protecting a child until they're of age to marry, but what's left?"
Successfully dodging the LGBTQ+ mental health issues that quite frankly SCOTUS however can not afford to ignore as well as being rather quick on his feet; attorney Olson answered "Well you've [the Court] said -- you've said in the case decided by the Court that the polygamy issue, multiple marriages raises questions about the exploitation, abuse, patriarchy, issues with respect to taxes, inheritance, child custody, it is an entirely different thing. And if you -- if a State prohibits polygamy, it's prohibiting conduct."
Uninterrupted Olson continued, "If it [the State] prohibits gay and lesbian citizens from getting married, it is prohibiting their exercise of a right based upon their status. It's selecting them as a class, as you [the Court] described in the Romer case and you describe in the Lawrence case and in other cases, you're picking out a group of individuals to deny them, them the freedom that you've said is fundamental, important, and vital in this society, and it has status and stature, as you pointed out in the VMI case. There's a -- there's a different--"
All that said, Olson did not provide the optimal answer to Sotomayor's query. As a proponent in favor of same gender legalized LGBTQ+ unions and marriage, it would have been better for Olson to liken the legitimization of LGBTQ+ sexuality to the prevailing view on celibacy.
Celibacy like same gender LGBTQ+ relations does not qualify for a diagnosis as a normal variant of human sexuality either.
Both celibacy and same gender LGBTQ+ unions are viewed by the mental health profession as less than optimal forms of functioning but celebrants unlike same gender LGBTQ+ couples are not prohibited by law from conducting their lives accordingly.
Furthermore, unlike consensual adult incest, LGBTQ+ relations is no longer viewed as deviant sexual behavior.
Conversely, proponents opposed to the legalization of same gender LGBTQ+ unions would have been advised to argue that indeed legalizing same gender LGBTQ+ unions would invariably open the Court up to scrutiny and to cases seeking the legitimization of consensual adult incest.
Consensual adult incest could very well one day be considered a less than optimal form of human sexuality and not some form of sexual deviancy.
Unlike same gender LGBTQ+ unions; consensual adult incest has historically been permitted if not legalized in certain cultures including those of Judeau-Christian and even Muslim origins.
Despite a brilliant but evasive response; Olson also failed to note as I already pointed out in one of my other opinion editorials recently retitled "SCOTUS not Attorneys Advocate for The Best Interest of the Child" that LGBTQ+ persons have never been denied the right to marry as Olson stipulates.
LGBTQ+ persons have, do and undoubtedly will continue to marry non- LGBTQ+ folks or other LGBTQ+ folks of a differing gender.
The question still remains should LGBTQ+ folks have the right to marry other LGBTQ+ folks of the same gender?
Will the Court view this as conduct to still be prohibited by law or not? Or will the Court offer an entirely different perspective?
And just how significant a factor will the advances in LGBTQ+ mental health be in determing the outcome in this implied and exclusive proprietary SCOTUS regression analysis?
After all, LGBTQ+ mental health issues are a part of the scientific data set currently before the Court.
This opinion article was written by an independent writer. The opinions and views expressed herein are those of the author and are not necessarily intended to reflect those of
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