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Sexual Orientation Minority Rights and High-Tech Conversion Therapy



The 'born this way' movement for sexual orientation minority rights is premised on the view that sexual orientation is something that can neither be chosen nor changed. Indeed, current sexual orientation change efforts (SOCE) appear to be both harmful and ineffective. But what if 'high-tech conversion therapies' (HCT) are invented in the future that are effective at changing sexual orientation? The conceptual basis for the movement would collapse. In this chapter, we argue that the threat of HCT should be taken seriously, motivating a change in tactics for proponents of sexual orientation minority rights. We also discuss some of the practical-ethical and public-policy issues surrounding HCT, in case the technology is one day developed.
Sexual Orientation Minority Rights and
High-Tech Conversion Therapy
Brian D. Earp and Andrew Vierra
The ‘born this way’ movement for sexual orientation minority rights
is premised on the view that sexual orientation is something that can
neither be chosen nor changed. Indeed, current sexual orientation
change efforts (SOCE) appear to be both harmful and ineffective. But
what if ‘high-tech conversion therapies’ (HCT) are invented in the
future that are effective at changing sexual orientation? The
conceptual basis for the movement would collapse. In this chapter,
we argue that the threat of HCT should be taken seriously, motivating
a change in tactics for proponents of sexual orientation minority
rights. We also discuss some of the practical-ethical and public-
policy issues surrounding HCT, in case the technology is one day
Key words: sexual orientation change efforts, SOCE, gay conversion
therapy, identity, rights
This is the authors’ copy of an in-press book chapter. Please cite as follows:
Earp, B. D., & Vierra, A. (in press). Sexual orientation minority rights and high-tech
conversion therapy. In D. Boonin (Ed.), Handbook on Philosophy and Public Policy.
Basingstoke: Palgrave Macmillan. Available online ahead of print at
Sexual Orientation Minority Rights and High-Tech Conversion Therapy
Brian D. Earp and Andrew Vierra
1. Introduction
Following the 2014 death by suicide of Leelah Alcorn, a 17-year-old transgender youth,
former President Barack Obama called for a nationwide ban on psychotherapy and other
interventions aimed at changing sexual orientation in minors.
The Obama administration
argued against such sexual orientation change efforts (SOCE), stating that since SOCE can
have “potentially devastating effects” on the lives of “gay, lesbian, bisexual and queer
youth,” they are neither medically nor ethically appropriate.
The Human Rights Campaign
made a similar argument, adding that SOCE do not even do what they purport to do—that is,
change one’s sexual orientation.
Although much of the available evidence in this area is of
very poor quality, it does on balance support these claims. Specifically, the physical, mental,
and other ‘medical’ risks associated with common approaches to SOCE, though difficult to
estimate with any precision, can be extremely severe—up to and including suicide—when
they do occur.
At the same time, apart from a smattering of non-generalizable, anecdotal
reports of dubious validity to the contrary,
such approaches overwhelmingly do not seem to
There are, of course, a great many other grounds on which one could base a critique
of SOCE, some of which are more robust as we will argue. However, the ‘harmful and
ineffective’ approach is one of the most commonly used to justify potential prohibitions of
SOCE (especially on minors); hence it is the one with which we will begin our analysis. To
see why this approach is less than ideal, consider the following: What if, contrary to the
current situation, future SOCE interventions actually did work, and could be made to be
relatively safe? In other words, what if current techniques were improved upon (in a manner
of speaking), such that they were in fact successful at changing sexual orientation, often
enough and to a sufficient degree—and with an acceptable risk profile as judged by those
who sought such interventions—that the above-stated grounds for a ban were either
weakened or destroyed?
Should SOCE then be legally permitted, whether on minors or
anyone else? Could such efforts be morally permissible, whether legal or not?
These are the questions with which we will concern ourselves in this chapter. They
are worth taking seriously. Based on current trends in research, it is not implausible that in
the not-too-distant future, scientists will know enough about the genetic, epigenetic,
neurochemical and other brain-level factors that are involved in shaping sexual orientation
that such variables could be effectively and relatively safely modified, more or less directly,
with the application of some biotechnology.
Likely in concert with existing or perhaps
refined psycho-behavioral approaches, it might then be possible for individuals with
predominately or exclusively same-sex sexual attraction to redirect their erotic desires to, as it
were, the ‘opposite’ end of the spectrum (very roughly: convert from homosexual to
heterosexual), as well as presumably the other way around (i.e., heterosexual people could
convert to homosexuality). Call such possible future technology high-tech conversion therapy
or HCT.
Two notes of clarification before we go further. First, on terminology: We will
sometimes use the labels homosexual (or gay) and heterosexual (or straight) in this chapter as
we have just done—taken from the corresponding folk taxonomy of sexual orientation, which
also includes bisexual—despite the fact that there is, in our view, a great deal more to sexual
orientation than these labels suggest (see “What is sexual orientation?” by Robin Dembroff
for a nice discussion).
Second: We do not support the creation or the use of HCT. Rather,
we aim to show that the sheer prospect of its development has troubling implications for a
human and civil rights movement that is largely centered around a ‘born this way’ response
to unjust discrimination (essentially, an appeal to innateness), as well as a purportedly
corollary response concerning immutability (‘I can’t change, even if I tried’). Together, these
responses are commonly thought to support an argument along these lines:
Premise 1. It is wrong to discriminate against someone on the basis of an unchosen,
unchangeable characteristic.
Supporting Analogy. For example, it is wrong to discriminate against someone on
the basis of their race or sex, which are unchosen and unchangeable characteristics.
Premise 2. Sexual orientation is an unchosen and unchangeable characteristic (like
race or sex).
Conclusion. It is wrong to discriminate against someone on the basis of their sexual
Is this a good argument? In answering this question, we will simply set aside certain
heated debates about the nature of (some) trans identities that threaten to undermine the
Supporting Analogy.
Still, we suggest, the above argument is perilously weak both
conceptually and legally, as numerous scholars have noted,
and as we will discuss in
more detail in the following section. But even if this were a sound argument, or simply a
highly rhetorically effective one (and thus potentially worth preserving on pragmatic
grounds), it would remain vulnerable to empirical refutation insofar as HCT is possible (see
Premise 2).
It is this last insight that motivates our arguments in this chapter. To put it simply,
securing fundamental rights for individuals with minority sexual orientations is far too
important a project morally speaking to be based on faulty premises or left a hostage to
biotechnological fortune. Although one might argue that the latter problem, at least, could be
addressed with a pre-emptive ban on the development of HCT, one might also be concerned
that pinning such rights to the successful execution of a particular regulatory policy is
unlikely to be much more prudent. Indeed, we claim, it would be much better to formulate—
or fortify existing—arguments to the effect that regardless of whether one’s sexual
orientation can be chosen or changed, one should be recognized as a moral equal to any other
person and be treated as such before the law (with respect to, e.g., marriage rights,
employment non-discrimination, and so on). Moreover, one should never be forced nor feel
pressured to pursue HCT even if it is one day available.
Such arguments are gaining steam among many scholars. Tia Powell and Edward
for example, maintain that contestable claims about the nature and origin of sexual
attraction “are neither good science nor good politics and are not an appropriate foundation
for prohibiting sexual orientation change efforts” or for pursuing sexual orientation minority
rights more generally. Instead, they write, support for such rights “should be grounded in an
intellectually rigorous and appropriately humble approach to science and the limits of
scientific knowledge.” We agree and simply add that it should be grounded in a similar
approach to the potential future capacities of what Kristina Gupta calls “neurotechnological
interventionsto alter sexual behavior and desire.
We will proceed as follows. In section 2, we give a brief overview of the ‘born this
way’ approach to arguing for sexual orientation minority rights, and raise a few key problems
with the approach as it is commonly advanced. We also explain why the prospect of HCT
renders the approach even more suspect and fragile, and suggest that it should ultimately be
abandoned. Then, in section 3, we consider a number of ethical and policy-related questions
surrounding the development and potential use of HCT, drawing on recent scholarship.
Section 4 concludes with a practical suggestion for how best to argue for sexual orientation
minority rights.
2. The Logic of ‘Born This Way’ and the Threat of HCT
In a recent popular article for USA Today, Alia Dastagir
gives a succinct but fair summary
of the contemporary push for gay rights, which has become emblematic of—and is often held
as an umbrella over—the push for sexual orientation minority rights on the whole. For
decades, Dastagir writes:
“born this way” has been the rallying cry of the mainstream gay rights movement, a
simple slogan cited as the basis for both political change and cultural acceptance. ….
Getting America to believe that people are born gay — that it’s not something that
can be chosen or ever changed — has been central to the fight for gay rights. If
someone can’t help being gay any more than they can help the color of their skin, the
logic goes, denying them rights is wrong.
This ‘logic’ is intuitively appealing. Moreover, it has by all appearances played a
positive role in fostering more accepting attitudes toward persons with primary sexual
attractions that are other than strictly heterosexual. And whatever flaws it may have
conceptually, to be discussed shortly, it has helped many such people ward off harassment
and abuse in their daily lives, as the musician and scholar Mark Bailey eloquently wrote to
one of us in response to an earlier essay on this topic:
The timeline of events in history that led to [the] “it’s not a choice” counter-argument
clearly shows that this is not inherently a matter of gay-rights activism, but, rather, a
necessary grasping unto something presented by a segment of the scientific
community that … could enable a needed moment of relief from relentless attacks
against the soul. “It’s not a choice” has been a way to survive.
In other words, many have had to endure endless abuse for their non-heterosexuality:
daily bullying, loss of employment, public humiliation, discrimination,
excommunication, loss of family and friends — sometimes murder or suicide. And
then, finally, in the face of all this, struggling gay men and women had something to
say that would cause some attackers to pause for a second by virtue of a few magic
words: it’s not a choice. There are people who reclaimed their lives because of those
magic words.
Whether, in the end, sexuality is truly a choice doesn’t matter. But if someone who
has endured malice all his life for feelings he felt no control over, finally, can get up
in the morning and face the world with confidence while others back off, just a little,
then maybe we can better understand this particular timeline of progress and not
mistake it for irresponsible activism.
Bailey is right that the “magic words” have largely worked thus far. Their strength
lies in an tacit ought-implies-can argument (if I ought to change my sexual orientation to
avoid discrimination, this implies that I can do so; but since I cannot change it, it is not the
case that I ought to do so), which is watertight as long as one “cannot.”
But this argument
may not go on working forever. Indeed, insofar as HCT is possible, and certainly if it is
developed and becomes available, the argument—and the magic words it upholds—will fail.
Over the long run, then, rights for individuals with minority sexual orientations should
be grounded in stronger conceptual premises: core principles whose perceived validity will
neither rise nor fall with the latest technological development — as with HCT — or with the
ever-changing tide of scientific opinion.
In other words, it can be quite dangerous to hitch
what is essentially a moral or political argument, namely, that sexual orientation minorities
should be treated with respect and given the same rights as anyone else, to an ultimately
debatable empirical or technological assumption, namely, that sexual orientation cannot be
In fact, the debate concerning this assumption—and the ‘born this way’ narrative that
makes such heavy use of it—is taking place not only between, for example, certain religious
conservatives who oppose rights for sexual orientation minorities and those minorities
themselves, but also among such minorities. As Dastagir notes: “many members of the
LGBTQ community reject this narrative, saying it only benefits people who feel their
sexuality and gender are fixed rather than fluid, and questioning why the dignity of gay
people should rest on the notion that they were gay from their very first breath.”
We agree that this narrative is too simple, and we have objected to it elsewhere.
Among other problems, it implies that “sexual orientations are essential/natural features of
persons, thereby completely obscuring the role of social forces in shaping our sexual
attractions and tendencies.”
It also confuses and conflates other important issues, for
example by treating conceptually distinct phenomena—namely, innateness and
immutability—as though they were strictly related. But as Powell and Stein note, “there is no
necessary connection between a characteristic’s being innate and its being immutable.”
Hair color, for example, is mostly genetic, but may still change across the lifespan (with or
without chemical treatments). And immutability does not rest upon innateness: “Having an
antibody in one’s bloodstream might be something that can’t be changed once the antibody
has developed, but it is not innate.By analogy, then, Powell and Stein conclude that “sexual
orientation does not need to be innate in order to be immutable, and it can be innate without
being immutable.” Thus, “while current research suggests that genetic and other biological
factors likely play a role in the development of sexual orientations, this does not tell us that
orientations are unchangeable.”
Another problem with the ‘born this way’ narrative is that it treats conceptually
distinct aspects of a person—namely, their identity or self-conception and their sexual
orientation—as one and the same phenomenon. But these can come apart as well, not only in
the world of concepts, but also in real life. Consider that being gay (a matter of identity) is
not the same thing as, nor is it reducible to, being primarily or exclusively sexually attracted
to persons with the same sex and/or gender characteristics as oneself (a matter of sexual
orientation). For instance, one might very well have a sexual orientation along the lines just
described, and even fully embrace this fact and acknowledge as much when asked, without
seeing that orientation—or any sexual orientation—as being somehow constitutive of their
identity, central to their sense of self, definitional of their way of being-in-the-world, or even
a particularly important part of who they are deep down inside.
Moreover, they may
maintain this view—and may do so with moral and intellectual integrity—notwithstanding
the tendency of many societies to put enormous emphasis on who is disposed to sleep with
whom and to use this information as a way of picking out different ‘kinds’ of people and
determining what is ‘normal’ and what is ‘deviant.’
Yet another problem with the ‘born this way’ logic—in particular its implied corollary
concerning immutability—is that it suggests that a lack of choice, whether with respect to
one’s identity (i.e., as a ‘kind’ of person vis-à-vis one’s sexual orientation), which is almost
certainly mutable, at least to some extent,
or with respect to one’s sexual orientation (which
may or may not be mutable with current technology, and which will—by stipulation—be
mutable if HCT is developed), is a necessary condition for grounding moral and civil rights.
But this is false. As Powell and Stein argue, “there are very few human traits that are legally
salient and yet cannot be changed.”
They note, for example, that available medical
procedures make sex change possible (on some conceptions of sex), but this does not affect
the legal standard that should be applied to laws that discriminate on the basis of sex or
gender. Similarly, as the social commentator Dan Savage—among many others—has pointed
out, it is also possible to change one’s religious beliefs and identity, but no one would
conclude from this that it is therefore permissible to discriminate on the basis of religion.
“Faith – religious belief – is not an immutable characteristic,” Savage writes. “You can
change your faith. And yet religious belief is covered by civil rights laws and anti-
discrimination statutes … The only time you hear that a trait has to be immutable in order to
qualify for civil rights protections is when” social and religious conservatives talk about
minority sexual orientations.
Rather than concede the terms of the debate to such conservatives, and hope that
(advances in) science and (the limits of) technology will ultimately back one up, why not
instead show the invalidity of the argument? In brief, the conservative argument against
homosexuality and other minority sexual orientations is based upon the view that having—or
at least acting upon—a minority sexual orientation is morally repugnant.
Ultimately, this
premise must be challenged. Consider the following argument for the permissibility of
discrimination against persons with same-sex sexual orientations as an example:
(1) Having and/or acting upon a same-sex sexual orientation is a choice.
(2) Having and/or acting upon a same-sex sexual orientation is morally wrong.
(3) If one chooses to be immoral, then one can be legitimately discriminated against.
(4) Therefore, people with same-sex sexual orientations (especially if they act upon them)
can be legitimately discriminated against.
You will notice the equivocation over having and acting upon a same-sex sexual orientation.
This is to reflect the fact that, while some opponents of gay rights regard the mere having of a
same-sex sexual orientation as both subject to choice and a serious moral wrong, others are
willing to concede that the ‘having’ aspect may be out of one’s control while the ‘acting
upon’ aspect remains a matter of choice and therefore a fit target of moral judgment. Indeed,
to quote Powell and Stein—here referring to Lesbian, Gay, and Bisexual (LGB)
individuals—once again:
even if sexual orientation is not chosen, most of what is legally and ethically relevant
about being an LGB person is the result of conscious choice. Actually engaging in
sexual acts with a person of the same sex, publicly or privately identifying as an LGB
person, and marrying a person of the same sex and raising children together are
choices. In other words, an LGB person could decide to be celibate, closeted, single,
and childless. Support for LGB rights is precisely support to make these choices and
to do so without fear of discrimination or violence. The right simply to have same-sex
attractions, without the right to act on these desires or to express the related identities,
would be an empty right indeed.
This is an important point. Rights for sexual orientation minorities should not be limited to
those dimensions of their lives or identities that are, in fact, immutable, even if that category
does currently include their sexual orientations. Accordingly, proponents of rights for such
minorities would do well to move away from lack-of-choice as a major plank in their
arguments and activism. In addition to the reasons given by Powell and Stein concerning
choice in behavior—which those authors suggest, rightly in our view, should be protected
regardless of whether one’s underlying orientation can be chosen or changed—there is also
the possibility that the underlying orientation itself could one day be subject to conscious
choice through the use of HCT.
So the abovementioned rights-proponents should ask themselves: Assuming that this
possibility did indeed come about, would they be willing to concede that minority sexual
orientations are in fact wrong? That such orientations should in fact be changed? That it is in
fact permissible to discriminate against individuals with such orientations?
If they would not make these concessions, then choice is clearly not the issue.
Whatever is the issue, then—presumably, the lack of wrongness in both having and acting
upon a minority sexual orientation and/or the moral right of individuals to have consensual
sexual interactions and form romantic relationships with whomever they choose—should be
the focus of activist efforts going forward.
3. HCT – Politics and Practical Ethics
What are the practical-ethical and policy considerations that bear on HCT? The question is
urgent, because the use of biotechnology to interfere with the sexual feelings and behavioral
expressions of sexual orientation minorities is not actually a far-off speculation, nor is it
confined to an unenlightened past.
In some religious communities today, for example,
SSRI-based treatments for depression are being given to youths with same-sex sexual
orientations in order to harness the common side-effect of lowered libido,
thereby blunting
their sexual desires so that they might find it easier to conform to the restrictive norms of
their closed communities.
Consider this statement by Professor Omer Bonne, director of
the psychiatry department at Hadassah University Hospital in Jerusalem, concerning some
ultra-Orthodox Jews (Haredim) he has come to work with:
Some behaviors put Haredim in conflict with their values and cause them mental
problems, even to the point of depression. … My view concerning drug treatment in
such cases has changed. For example, when I was young, idealistic and less
experienced, whenever I had a case of homosexuality [or] masturbation . . . I would
say: “Homosexuality is not a mental problem, masturbation is certainly not a mental
problem or even a medical problem. I do not treat people who do not have a medical
problem.” Over the years, [however], I saw that people who do these “awful” things
suffer terribly because of the conflicts they create. Those urges, impulses or behaviors
place them in conflict with their society, and then they become depressed. In these
cases, I would indeed prescribe medicines that block these conditions.
In our view, what ultimately needs changing in such circumstances are the religious
norms that stigmatize “normal” or “healthy” sexual feelings—not the feelings themselves.
But what can be done in the meantime? In other words, how should the very real, present-
day suffering of those religious youths be addressed, given that the repressive sexual norms
of their insular communities are unlikely to liberalize any time soon? Could the use of
sexuality-altering biotechnologies—high tech or otherwise—in such cases ever be morally
In a recent paper, Sean Aas and Candice Delmas argue that the answer may be “yes.”
According to these authors, “clinicians would often be permitted, and sometimes even
required, to prescribe reorientation to patients who suffer from their sexual orientation, given
the medical principles of beneficence and respect for patient self-determination.”
But they
do not support the development of HCT on these grounds. In fact, Delmas has argued
separately that while HCT might very well benefit some individuals, it should nevertheless be
In the current non-ideal context in which heterosexuality is widely seen as
good, normal, or superior, simply having the option to convert to the sexual orientation
majority, she argues, would be harmful to sexual minorities on the whole.
This harm could
manifest as (1) pressures to convert, (2) expectations on sexual minorities to justify their non-
heterosexual orientations, and (3) conversion being understood as the rational course of
action for those who fall outside the norm.
Consider first the likely pressure to convert. While some such pressure might arise out
of hostility and diminished tolerance for sexual non-conformers, Delmas contends, it could
also arise out of genuine concern for the well-being of sexual minorities. If only they would
join the winning team and become heterosexual, some might argue, their lives would go so
much better (as indeed they might). To make the choice easier—and the pressure more
intense—family members, clergy, or even the government could offer to pay for HCT. As a
result of these and other pressures, the option to convert might become an offer that is very
difficult to refuse. According to Delmas, such a situation would place a severe and unjust
burden on sexual orientation minorities.
Part of this burden would be an increase in the perceived need to justify one’s
decision not to convert—the second harm raised by Delmas. Just as bisexual people are
sometimes expected to explain why they pursue same-sex couplings even though
heterosexual romance is a real possibility for them, the existence of HCT could make it so
that even those who have no heterosexual desires ‘owe’ society an explanation for their
Conversely, those who start off heterosexual, or who become heterosexual,
might not be expected to explain their decision to stay or become straight, as this would be
seen as the right and sensible choice.
Under such oppressive conditions, conversion might widely be seen as the rational
choice for those who are not heterosexual by birth or by choice—harm number three for
Delmas. Indeed, on a welfare-centered analysis, it might be the rational choice. But what is
rational for individuals within a group can still be socially harmful if it promotes greater
intolerance or injustice toward the group at large. In practice, this harm could befall anyone
who maintained their non-heterosexual orientations despite having the option to convert—
and despite the growing number of ‘success’ stories from those who did change their
orientations and found greater acceptance in the wider community. In this way, sexual
orientation minorities tempted by the promise of a better life could find it difficult to resist
being complicit in their own oppression, or even the erasure of their ‘kind’ of person.
upshot would be powerful reinforcement of heteronormative domination.
These three harms of HCT, according to Delmas, “dwarf the potential benefits to
individuals that could be gleaned if the technology were available.” Taken together, she
thinks, they make a “compelling case for the idea that sexual orientation should remain
outside the individual’s control, and therefore that ‘conversion’ therapy ought not to be
We are sympathetic to Delmas’s argument. But as we noted earlier, there is a risk in
tying the rights of sexual orientation minorities to such uncertain policy outcomes as a pre-
emptive ban on the development of HCT.
Like it or not, HCT may one day be developed—
if not under one regulatory regime, then perhaps another. So we must continue to grapple
with the ethics of its use, if not by minors (we have argued elsewhere that HCT should be
strictly prohibited for underage persons) then by adults.
For her part, Delmas seems to assume that adult motivations to change sexual
orientation would always or primarily be due to oppressive conditions or internalized bigotry,
perhaps leading to self-hatred. But it is not clear that this must be the case. What if one’s
philosophical views or aesthetic interests, for example, served to inspire a request for HCT?
What if one were simply deeply curious about what it would be like to be attracted to
individuals of an alternative sex or gender? Such cases are not inconceivable, and it could be
argued that HCT might well be justifiable in certain circumstances on grounds of autonomy
or by an appeal to the ideal self-creation.
Even in the case of a religious individual, it seems at least possible that one’s spiritual
goals or theological commitments—however backwards or incomprehensible those may
seem to a secular person—could rationally sanction a decision to alter sexuality, even in the
absence of unjust social pressures. As the counseling psychologist Douglas Haldeman has
argued, “Many religiously oriented individuals have reported that their therapy ignored or
attempted to devalue the spiritual aspects of their identity in the interest of facilitating their
‘coming out.’ With some individuals, such an approach imposes sexual orientation over
spirituality, neglecting the primary task of integrating all aspects of identity.”
As we suggested earlier, identity is a complex matter: some people might regard their
default sexual orientation as central to their sense of self, but other people—whether of a
minority or majority sexual orientation—might regard other dimensions of their selves as
more important or closer to the center, and be well within their rights to do so. Consider the
historical case of “political lesbians” as just one illustration of this possibility—a case that
also forces us to consider the ethics of individuals with a heterosexual orientation seeking to
convert to a homosexual orientation on apparently morally principled grounds.
According to Julie Bindel, in the late 1970s a group of lesbians in Leeds, calling
themselves revolutionary feminists, made a controversial proposal that “resonated loudly” for
herself and many other women: they began calling for all feminists to embrace lesbianism as
a matter of political necessity and philosophical purity. The idea, roughly put, was that men
as a class were the enemy—agents of an oppressive hetero-patriarchy—and one should
literally not sleep with the enemy.
The movement reached its height in 1981 with the publication of a booklet, Love Your
Enemy? The Debate Between Heterosexual Feminism and Political Lesbianism. In this book,
the revolutionary feminists argued that women who slept with men could not be feminists.
The book did not insist that women must sleep with women, but for women who were not
sexually attracted to women, this version of feminism implied a life of celibacy.
In theory,
HCT would offer a solution to women who found themselves tempted by political lesbianism,
but who were only sexually attracted to men. Might conversions from heterosexuality to
homosexuality as a way of supporting a morally motivated lesbian identity be permissible,
given the objections to such conversion posed by Delmas?
One reason to think it would be permissible is that these feminists were not actually
sexual minorities, in the sense that their unchosen, innermost sexual desires were not
different from those of the majority of women. Thus, it could be argued, there would be less
social pressure for them to change those desires, which would eliminate some of the concerns
about structural coercion raised by Delmas in her paper. But this would create a troubling
situation: members of a sexual majority would be permitted to use HCT to modify their
sexual orientations in such a way that their desires became more consistent with their highest
values (in this case, political lesbianism), whereas current sexual minorities, some of whom
might sincerely wish to change their own sexual orientations for principled moral or
philosophical reasons, would not be permitted to do so, thereby being forced to submit to a
constraint that did not apply to those in the sexual majority.
Seemingly, then, either everyone should be permitted to use HCT so long as they are
mature, fully informed adults who sincerely believe they are acting on their highest values, or
no one should be permitted to use it. Given that relatively few people with heterosexual
orientations seem motivated to become sexual minorities (even in a political sense), whereas
a great many sexual minorities face pressure from their respective communities to convert,
the safest vote might be for no one. This would suggest that we should try to prevent HCT
from coming into existence, as Delmas proposes, or else ban it even for adults if it does
become available—something that could in principle be accomplished by passing the right
But this still leaves certain issues unaddressed. In particular, it leaves unaddressed the
conceptual problem with ‘born this way’ approaches to securing fundamental rights for
sexual orientation minorities. Even if HCT were successfully banned—and there is no
guarantee that this would happen—the ‘magic words’ we referred to earlier, based on the
argument that ‘ought implies can; therefore cannot implies that it is not the case that one
oughtwould still be on very weak footing. Specifically, ‘cannot’ would be reduced to
‘cannot in practice, because of current legislation,’ leaving ‘can in fact, if not for current
legislation’ rejoinders available to those who oppose rights for sexual orientation minorities.
Instead of relying on the vagaries of future legislative efforts concerning technological
development or accessibility, we argue, it would be far better to build the case for sexual
orientation minority rights on stronger conceptual footing.
4. Conclusion
In this final section, we offer some pointers for developing such a case, while being mindful
of potential obstacles along the way. Recall the argument for the moral legitimacy of
discriminating against people with same-sex sexual orientations, outlined above:
1. Having and/or acting upon a same-sex sexual orientation is a choice.
2. Having and/or acting upon a same-sex sexual orientation is morally wrong.
3. If one chooses to be immoral, then one can be legitimately discriminated
4. Therefore, people with same-sex sexual orientations (especially if they act
upon them) can be legitimately discriminated against.
Given the arguments of Powell and Stein concerning choice in behavior, as well as
the prospect of HCT allowing for choice in orientation, objecting to the first premise—and in
so doing, implicitly conceding the terms of the debate—is a losing strategy. It does not
ultimately matter whether one’s sexual orientation is innate or immutable, for the reasons we
gave above. Human, civil, and legal rights simply do not rest on such characteristics. Instead,
taking an individual rights-based approach, the argument should be that people have a moral
right to have consensual sexual interactions with—and love, and form relationships with—
whomsoever they please, without prejudice or interference from the state (or anyone else).
Thus, it is the second premise of the argument for discrimination that proponents of sexual
orientation minority rights should focus on dismantling going forward. For if having and
acting upon a same-sex sexual orientation—or any other sexual orientation, assuming valid
consent among all parties when it comes to behavior—is not morally wrong, as we believe,
but decline to argue, it is not, then the question of choice is rendered irrelevant.
There is room for considerable improvement on this front. When it comes to
homosexuality (and associated gay and lesbian identities), for instance, many social
progressives talk about same-sex sexual orientation with an air of apology: “They can’t help
it,” the suggestion seems to be, as though, if they could help it, they would opt for the
alternative. Such language directly reinforces the ‘born this way’ narrative and indirectly
legitimizes HCT. But why should those with a minority sexual orientation want to change,
even if they could? A positive case for such orientations is needed that emphasizes their
desirable aspects, or at least stresses that they are no less desirable than majority sexual
When defenses of minority sexual orientation rights implicitly concede that such
orientations are less valuable than majority orientations—an unfortunate condition one is
born into—they give unwarranted credence to conversion therapy, whether of the high-tech
variety that may exist in the future, or the low-tech varieties being peddled today. Moving
past ‘born this way’ is a first step toward embracing the full range of human sexual
orientations, allowing them to feature in individuals’ identities and life-plans—to the extent
and in the manner they prefer—in a more positive way.
Defending minority sexual orientation rights on such grounds comes with pragmatic
legal advantages as well. When the Supreme Court ruled that sex with members of the same
sex should not be criminalized in the 2003 case Lawrence v. Texas, Justice Scalia noted in his
dissent that “If moral disapprobation of homosexual conduct is ‘no legitimate state interest’
for purposes of proscribing that contact … what justification could there possibly be for
denying the benefits of marriage to homosexual couples?”
Scalia is right. What matters in
determining whether individuals with minority sexual orientations deserve equal rights is not
whether those orientations are a matter of choice; what matters is that having—and acting
consensually upon—such an orientation is not a fit object of moral disapprobation.
Notes and References
BBC, “Obama calls for end to ‘gay conversion’ therapies.” BBC News, April 9, 2015. Accessed March 4, 2018. It is worth noting that
interventions designed to change a person’s gender identity (as in the Alcorn case) are not conceptually the same
as interventions designed to change a person’s sexual orientation (the subject of this chapter); nevertheless, the
two forms of therapy are often lumped together as constituting “conversion therapy” in popular discourse.
Jarrett, Valerie, “Petition response: on conversion therapy.” The White House, April 8, 2015.
Accessed February 26, 2018.
HRC, “The lies and dangers of efforts to change sexual orientation or gender identity.” Human Rights
Campaign. Accessed February 26,
APA, “Report of the task force on appropriate therapeutic responses to sexual orientation.” American
Psychological Association, August 2009.
Accessed March 4, 2018.
Spitzer, Robert L, “Can some gay men and lesbians change their sexual orientation? 200 participants reporting
a change from homosexual to heterosexual orientation,” Archives of Sexual behavior, 32, no. 5 (2003): 403-417.
Drescher, Jack, “Can sexual orientation be changed?,” Journal of Gay & Lesbian Mental Health, 19, no. 1
(2015): 84-93.
APA, “Report of the task force on appropriate therapeutic responses to sexual orientation.
Earp, Brian D. "Can you be gay by choice?" In: Philosophers Take on the World (Oxford: Oxford University
Press, 2016).
Earp, Brian D., Anders Sandberg, and Julian Savulescu, “Brave new love: the threat of high-tech ‘conversion’
therapy and the bio-oppression of sexual minorities,” AJOB Neuroscience, 5, no. 1 (2014): 4-12. Please note that
minor portions of this chapter have been adapted from this essay.
Earp, Brian D., Olga A. Wudarczyk, Anders Sandberg, and Julian Savulescu. "If I could just stop loving you:
Anti-love biotechnology and the ethics of a chemical breakup." The American Journal of Bioethics 13, no. 11
(2013): 3-17.
Earp, Sandberg, and Savulescu, “Brave new love.”
Dembroff argues that the current classifications “regularly create difficulties for queer, gender-
nonconforming, and intersex persons, as well as their partners,” and asks, significantly: “How should gender-
nonconforming, transgender, or intersex persons (or their partners) describe their sexual orientations” given the
available options? See Robin Dembroff, “What is sexual orientation?” Philosophers’ Imprint, 16, no. 3 (2016):
Brubaker, Roger, Trans: Gender and Race in an Age of Unsettled Identities (Princeton: Princeton University
Press, 2016).
Tuvel, Rebecca, “In defense of transracialism.” Hypatia 32, no. 2 (2017): 263-278.
Winnubst, Shannon, “Why Tuvel’s article so troubled its critics.” The Chronicle of Higher Education, May 8,
2017. Accessed March 4, 2018.
Talusan, Meredith, “There is no comparison between transgender people and Rachel Dolezal.” The Guardian,
June 12, 2015.
rachel-dolezal. Accessed March 4, 2018.
Halley, Janet, “Sexual orientation and the politics of biology: a critique of the argument from
immutability,” Stanford Law Review, 46, no. 3 (1994): 503-68.
Hillin, Taryn, “Here’s why the ‘born this way’ approach to sexual orientation is failing.” The Huffington Post,
February 9, 2016.
orientation_us_56ba4b59e4b0b40245c465f0. Accessed March 4, 2018.
Powell, Tia, and Edward Stein. “Legal and ethical concerns about sexual orientation change efforts.” Hastings
Center Report, 4, no. 44 (2014), S32-S39.
Gupta, Kristina, “Protecting sexual diversity: Rethinking the use of neurotechnological interventions to alter
sexuality,” AJOB Neuroscience, 3, no. 3 (2012): 24-28.
Dastagir, Alia, “Born this way? It’s way more complicated than that.USA Today, June 16, 2017.
complex/395035001/. Accessed March 4, 2018.
Mark Bailey, quoted in Brian D. Earp, “Choosing one’s own (sexual) identity: Shifting the terms of the ‘gay
rights’ debate,” Practical Ethics, January 26, 2012.
gay-by-choice/. Accessed March 4, 2018.
But see Chituc, Vladimir, Paul Henne, Walter Sinnott-Armstrong, and Felipe De Brigard. "Blame, not ability,
impacts moral ‘ought’ judgments for impossible actions: toward an empirical refutation of ‘ought’ implies
“can”." Cognition 150 (2016): 20-25. Note that the ought-implies-can argument is linked to the earlier issue
concerning the wrongness of discrimination. Those who argue that discriminating against people with minority
sexual orientations is in fact permissible typically think that (1) it is wrong to have (or act on) a minority sexual
orientation, and (2) one should change whatever aspects of oneself (or one’s behavior) it is wrong to have (or act
on), and (3) if one fails to change those aspects, it is permissible for societies to discriminate against one, for
having chosen to be (or behave) a way that it is wrong to be (or behave). For more on this argument, see the
latter part of the present section.
This sentence, and a few others in this section, are adapted from Brian D. Earp, “In praise of ambivalence:
‘young’ feminism, gender identity, and free speech.” Quillette Magazine, July 2, 2016.
Accessed March 4, 2018.
Dastagir, “Born this way?”
Andrew Vierra, “Make me gay: what neuro-interventions tell us about sexual orientation and why it matters
for gay rights.” In: Neurointerventions and the Law (Oxford: Oxford University Press, forthcoming).
Vierra, Andrew, and Brian D. Earp, “What if you could change being gay?” Newsweek, April 26, 2015. Accessed March 4, 2018.
Robin Dembroff, personal communication, March 1, 2018. We thank Professor Dembroff for helpful
feedback on an earlier draft of this chapter.
See also Jenkins, Carrie. What Love Is: And What it Could Be (New York: Basic Books, 2017).
Powell and Stein, “Legal and ethical concerns about sexual orientation change efforts,” S35.
Powell and Stein, “Legal and ethical concerns about sexual orientation change efforts,” S35.
For a related discussion, see Newman, George E., Paul Bloom, and Joshua Knobe. "Value judgments and the
true self." Personality and Social Psychology Bulletin 40, no. 2 (2014): 203-216.
Hacking, Ian, "How ‘natural’ are ‘kinds’ of sexual orientation?" Law and Philosophy 21, no. 1 (2002): 95-
Earp, "Can you be gay by choice?"
Powell and Stein, “Legal and ethical concerns about sexual orientation change efforts,” S35.
Dan Savage, “Ben Carson: Being gay is a choice and prison proves it,” The Stranger, March 4, 2015.
prison-proves-it. Accessed March 4, 2018.
E.g., Lamont, Ann, “What’s wrong with being gay? Homosexual behavior versus the Bible.” Christian
Ministries International, 2004. Accessed March 4, 2018.
Powell and Stein, “Legal and ethical concerns about sexual orientation change efforts,” S36-37.
Portions of this section are adapted from Earp, Sandberg, and Savulescu, “Brave new love.”
For ethical analysis of biotechnological interventions into sex and love more generally, see Earp, Brian D.,
Anders Sandberg, and Julian Savulescu. "The medicalization of love." Cambridge Quarterly of Healthcare
Ethics 24, no. 3 (2015): 323-336.
See also Earp, Brian D., Anders Sandberg, and Julian Savulescu. "The medicalization of love: Response to
critics." Cambridge Quarterly of Healthcare Ethics 25, no. 4 (2016): 759-771.
See Earp, Brian D., and Julian Savulescu. "Love drugs: Why scientists should study the effects of
pharmaceuticals on human romantic relationships." Technology in Society 52, no. 1 (2018): 10-16.
Earp, Sandberg, and Savulescu, “Brave new love.”
Ettinger, Yair,“Rabbi’s little helper,” Haaretz, April 6, 2012. Accessed
March 4, 2018.
For some arguments why, concerning an analogous case, see Earp, Brian D. "The ethics of infant male
circumcision." Journal of Medical Ethics 39, no. 7 (2013): 418-420.
See also Earp, B. D., and Robert Darby. “Circumcision, sexual experience, and harm.” University of
Pennsylvania Journal of International Law 37, No. 2 – online (2017): 1-56. See especially pp. 45-47.
Aas, Sean, and Candice Delmas. "The ethics of sexual reorientation: What should clinicians and researchers
do?" Journal of Medical Ethics 42, no. 6 (2016): 340-347, 341.
Delmas, Candice, “Three harms of ‘conversion’ therapy,” AJOB Neuroscience, 5, no. 2 (2014): 22-23.
Delmas, “Three harms,” 22.
Delmas, “Three harms,” 22.
Delmas, “Three harms,” 22.
Assuming that they identify as members of a human ‘kind’ based on sexual orientation.
Delmas, “Three harms,” 22.
For a related discussion, see Danaher, John, Brian D. Earp, and Anders Sandberg. "Should we campaign
against sex robots?" In Robot Sex: Social and Ethical Implications, pp. 47-71 (Cambridge: MIT Press, 2017)
See Earp, Sandberg, and Savulescu, “Brave new love.”
See Gupta, “Protecting sexual diversity.”
Haldeman, Douglas, “Gay rights, patient rights: the implications of sexual orientation conversion therapy,”
Professional Psychology Research and Practice, 33, no. 3, 260-264, 263.
Bindel, Julie, “My sexual revolution,The Guardian, January 30, 2009. Accessed March 4, 2018.
Bindel, “My sexual revolution.”
Lawrence v. Texas, 539 U.S. 558 (2003).
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Current legal arguments for gay rights use gay primarily to refer to individuals that have same-sex erotic desires. However, as this chapter argues using a thought experiment based on a neurointervention that would alter the orientation of one’s erotic desires, the term gay should be understood in a broader sense to include a more diverse group of individuals, including some individuals that do not have same-sex erotic desires. For this reason, the current restrictive use of the term gay presumed in legal discourse doesn’t capture the entire gay community that we should want to extend rights to. To rectify this problem with the way that arguments for gay rights are being framed, this chapter suggests that we expand the use of the term gay in legal discourse to encompass a more heterogeneous population than the one picked out by same-sex-attracted individuals, and it explains some of the advantages of doing so.
Former NAACP chapter head Rachel Dolezal's attempted transition from the white to the black race occasioned heated controversy. Her story gained notoriety at the same time that Caitlyn (formerly Bruce) Jenner graced the cover of Vanity Fair, signaling a growing acceptance of transgender identity. Yet criticisms of Dolezal for misrepresenting her birth race indicate a widespread social perception that it is neither possible nor acceptable to change one's race in the way it might be to change one's sex. Considerations that support transgenderism seem to apply equally to transracialism. Although Dolezal herself may or may not represent a genuine case of a transracial person, her story and the public reaction to it serve helpful illustrative purposes.
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Three recent scientific reports that purport to show a biological basis for homosexuality have changed the face of pro-gay equal protection litigation by making the argument from immutability more attractive. Professor Janet E. Halley critiques these studies and their reception in legal culture. Because immutability is not a requirement for successful pro-gay litigation, moreover, Professor Halley contends that pro-gay litigators who invoke the argument from immutability do so not only at their option, but at the risk of misrepresenting and dividing the community they hope to represent. She argues that progay legal argument should focus instead on common ground that adequately represents the self-conceptions of both pro-gay essentialists and pro-gay constructivists. And she suggests just such a common ground for more effectively articulating pro-gay equal protection arguments.