Windsor v. The United States Of America

Filing 62

DECLARATION of Conor B. Dugan in Opposition re: 28 MOTION for Summary Judgment.. Document filed by Bipartisan Legal Advisory Group of the U.S. House of Representatives. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E (part 1), # 6 Exhibit E (part 2), # 7 Exhibit F)(Kircher, Kerry)

Exhibit B

Letitia Anne Peplau

June 17, 2011
Page 1

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-------------------------------------EDITH SCHLAIN WINDSOR, in her
capacity as Executor of the Estate
of CLARA SPYER,
Plaintiff,
-against-

10-CV-8435

THE UNITED STATES OF AMERICA,
Defendant.
-------------------------------------(Caption continued on next page.)

DEPOSITION OF LETITIA ANNE PEPLAU, Ph.D.,

Friday, June 17, 2011

Letitia Anne Peplau

June 17, 2011
Page 2

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF CONNECTICUT
-------------------------------------JOANNE PEDERSEN & ANN MEITZEN,
GERALD V. PASSARO II,
LYNDA DEFORGE & RAQUEL ARDIN,
JANET GELLER & JOANNE MARQUIS,
SUZANNE & GERALDINE ARTIS,
BRADLEY KLEINERMAN & JAMES GEHRE, and
DAMON SAVOY & JOHN WEISS,
310 CV 1750
Plaintiffs,
(VLB)
v.

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OFFICE OF PERSONNEL MANAGEMENT,
TIMOTHY F. GEITHNER, in his official
capacity as the Secretary of the Treasury,
and HILDA L. SOLIS, in her official
capacity as the Secretary of Labor,
MICHAEL J. ASTRUE, in his official
capacity as the Commissioner of the
Social Security Administration,
UNITED STATES POSTAL SERVICE, JOHN
E. POTTER, in his official capacity as
The Postmaster General of the United
States of America,
DOUGLAS H. SHULMAN, in his official
capacity as the Commissioner of Internal
Revenue,
ERIC H. HOLDER, JR., in his official
capacity as United States Attorney General,
JOHN WALSH, in his official capacity as
Acting Comptroller of the Currency, and
THE UNITED STATES OF AMERICA,
Defendants.
--------------------------------------

Letitia Anne Peplau

June 17, 2011
Page 3

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DEPOSITION OF LETITIA ANNE PEPLAU, Ph.D.,

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an Expert Witness herein, taken by Defendant,

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pursuant to Agreement, at the offices of Paul

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Weiss Rifkind Wharton & Garrison, LLP, 1285 Avenue

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of the Americas, New York, New York, on Friday,

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June 17, 2011, at 10:40 a.m., before Margaret Eustace,

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a Shorthand Reporter and notary public, within

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and for the State of New York.

Letitia Anne Peplau

June 17, 2011
Page 11

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L.A. Peplau, Ph.D.

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A.

Yes, I have.

3

Q.

How many times?

4

A.

I have testified twice.

5

Q.

Have you ever been excluded as an

6

expert in a case?

7

A.

No.

8

Q.

Do you know the plaintiffs in both

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these cases?

10

A.

No, I don't.

11

Q.

You have never met any of them?

12

A.

No.

13

Q.

I know the answer to this, but I will

14

ask it for the record:

Are you an attorney?

15

A.

No.

16

Q.

I would like to go into the question

17

of sexuality.

18

How do you define homosexuality?

19

A.

20

would use.

21

of the broader term of sexual orientation.

22

That is what I addressed in my affidavit.

23
24
25

Q.

Homosexuality isn't actually a term I
I would think of it in the terms

How would you define sexual

orientation?
A.

I would define sexual orientation as

Letitia Anne Peplau

June 17, 2011
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L.A. Peplau, Ph.D.

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an enduring set of emotional sexual

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attractions towards men, toward women or

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toward both.

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I would as well define sexual

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orientation as including a person's identity

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as gay or lesbian or heterosexual or bisexual.

8

And I would also include it under the rubric

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of sexual orientation related behavior.

For

10

example, forming a relationship with a person

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of the same sex or of the other sex.

12

Q.

Within the definition of sexual

13

orientation, do you define gay differently

14

from that?

15
16

MR. BENSON:
A.

Object to the form.

I think the term gay is used in a

17

variety of ways.

It is one of the sexual

18

orientation identity labels that some people

19

might adopt.

20

commonly used with regard to men, but it is

21

sometimes used in a generic way to apply to

22

women as well.

The term is, I think, most

23

Q.

How would you define lesbian?

24

A.

I think of lesbian as an identity

25

label or category that would be used for women

Letitia Anne Peplau

June 17, 2011
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L.A. Peplau, Ph.D.

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whose enduring attractions are toward other

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women.

4

Q.

How would you define bisexual?

5

A.

Again, I would define it as an

6

identity label for a person whose emotional

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and romantic and sexual attraction are towards

8

persons of both sexes.

9
10

Q.

different definitions of sexual orientation?

11
12

Do different fields of study use

MR. BENSON:
A.

Object to the form.

You know, I really am not an expert

13

on how philosophy or political science or

14

other fields might define sexual orientation.

15

So I don't have a good answer for that

16

question.

17

Q.

18
19

What about in the social sciences?
MR. BENSON:

A.

Object to the form.

You know, I am a psychologist, so the

20

definition of sexual orientation that I use

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and that I am most familiar with is one that

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is -- has been used by the American

23

Psychological Association, which is our

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national professional association, it has been

25

used by them in their educational materials

Letitia Anne Peplau

June 17, 2011
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L.A. Peplau, Ph.D.

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for the public and for practitioners.

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widely accepted definition within psychology,

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but I really couldn't tell you what is a

5

standard sociology definition of sexual

6

orientation would be.

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MR. DUGAN:

It is a

I am going to have

8

this marked Exhibit 3.

This is the APA

9

answers to your questions.

10

(APA answers were marked as

11

Defendants' Exhibit 3 for

12

identification.)

13

Q.

Dr. Peplau, do you recognize this

14

document?

15

A.

Yes.

16

Q.

What is this document?

17

A.

It's a document prepared by the

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American Psychological Association.

It is

19

called "Answers to your questions."

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been prepared as an educational material by

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the APA.

It has

22

Q.

I direct you to page 2 of this

23

document.

24

causes a person to have a particular sexual

25

orientation?"

There is a question that says, What

Letitia Anne Peplau

June 17, 2011
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L.A. Peplau, Ph.D.

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And I will read this in for the

3

record.

4

"There is no consensus amongst

5

scientists about the exact reasons that an

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individual develops a heterosexual, bisexual,

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gay or lesbian orientation.

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research has examined the possible genetic,

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hormonal, developmental, social and cultural

10

influences on sexual orientation no findings

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have emerged that permit scientists to

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conclude that sexual orientation is determined

13

by any particular factor or factors.

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think that nature and nuture both play complex

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roles.

16

choice about their sexual orientation."

17

Do you agree with this?

Although much

Many

Most people experience little or no

18

A.

Yes.

19

Q.

And is this a consensus for you

20

amongst scientists?

21

MR. BENSON:

22

A.

Object to the form.

I think it is a widespread view.

23

There are many ideas here, but in the main, I

24

think the ideas that the causes of sexual

25

orientation are not understood is an idea that

Letitia Anne Peplau

June 17, 2011
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L.A. Peplau, Ph.D.

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is accepted by many researchers.

3

Q.

Would it fair to say that scientists

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don't know what causes a particular sexual

5

orientation?

6

A.

I will say that.

7

Q.

Paragraph 11 of your expert report

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you stated --

9
10

MR. BENSON:
record.

11
12

Exhibit 2 for the

MR. DUGAN:
Q.

Yes.

-- you stated that, "It is well

13

established that homosexuality is a normal

14

expression of human sexuality."

15
16
17

What do you mean by "normal" in
that sentence?
A.

What I really mean is explained in

18

the following sentence, which says, "It is not

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a mental illness, and being gay or lesbian has

20

no inherent association with a person's

21

ability to lead a happy, healthy or productive

22

life or to contribute to society."

23

I mean it in that way, that

24

homosexuality is part of a wide array of forms

25

of sexual orientation and that there is

Letitia Anne Peplau

June 17, 2011
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L.A. Peplau, Ph.D.

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one that suggests that unlike some of the past

3

views that linked sexual orientation with

4

mental health that that is a view that

5

psychologists and I no longer accept.

6
7

Q.

sexual orientation.

8
9
10

I want to go back to the question of

Is there a difference between sexual
orientation and sexual attraction?
A.

I think sexual orientation is a

11

fairly broad term that encompasses many

12

components, and attraction would be one of the

13

ingredients of sexual orientation.

14
15

Q.

the American population is homosexual?

16
17

Do scientists know what percentage of

MR. BENSON:
A.

Object to the form.

There are a variety of estimates that

18

have been made based on research projects.

19

So, for example, in the national

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representative probability sample by Laumann

21

and others, a project I reference, they used

22

people's sexual orientation identity

23

self-definition of being lesbian, gay or

24

bisexual or heterosexual.

25

And according to their data,

Letitia Anne Peplau

June 17, 2011
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L.A. Peplau, Ph.D.

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somewhere between 1 and 2 percent of women

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identified as lesbian, and somewhere between 2

4

and 3 percent of men identified as gay.

5

think that's a reasonable estimate, using

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self-identification as a measure of sexual

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orientation.

8
9

Q.

Have these estimates varied

throughout time?

10
11

And I

MR. BENSON:
A.

Object to the form.

It is fairly new that we have

12

estimates based on representative probability

13

samples.

14

and others, there were certainly estimates

15

that were based on nonrepresentative samples

16

and sometimes those estimate were different.

And so prior to research by Laumann

17

Q.

You cite Dr. Kinsey's work.

18

A.

Yes.

19

Q.

I believe he said that -- he had that

20

famous 10 percent number about homosexuals.

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Has that number been discredited?

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MR. BENSON:

23

A.

Yes.

Objection to form.

I would say that people have a

24

better understanding of Kinsey's numbers, that

25

Kinsey's sample of men, just where the number

Letitia Anne Peplau

June 17, 2011
Page 20

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L.A. Peplau, Ph.D.

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comes from was not representative, and that it

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is, I think, now widely believed to have been

4

too large a number.

5

Q.

Does the percentage of people who

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consider themselves homosexual differ in

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different areas of the country?

8
9

MR. BENSON:
A.

Object to the form.

The data that I know that have

10

representative samples are not differentiated

11

by region of the country.

12

Laumann data are not differentiated by region,

13

so I don't have a basis for answering that

14

question.

15

Q.

16

The term LGBT, lesbian, gay, bisexual

and transgender, what does that term mean?

17
18

For instance, the

MR. BENSON:
A.

Object to the form.

Sometimes when people are trying to

19

find a shorthand way to talk about people who

20

are not sort of traditionally heterosexual,

21

they will use acronyms.

22

really just a way of saying here are a set of

23

people.

24

might be an LGBT resource center for students,

25

and that would be a center that provided

And I think that's

For instance, in many colleges there

Letitia Anne Peplau

June 17, 2011
Page 25

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2

L.A. Peplau, Ph.D.
homosexual acts?

3

MR. BENSON:

4

Same objection.

5

A.

Object to the form.

You know, how I would classify such a

6

person would depend on the goal of the

7

research project.

8

interested in studying the transmission of

9

sexually transmitted diseases might be

Researchers who are

10

particularly interested in studying men who

11

have sex with men regardless of whether they

12

identify as heterosexual or gay.

13

that is commonly used for that for those men

14

is men who have sex with men, MSM.

15

Q.

16

And a term

birth?

17
18

Can sexual orientation be defined at

MR. BENSON:
A.

Objection to form.

What research shows is that people

19

come to understand their sexual orientation

20

most typically during adolescence, so I would

21

say that looking at a newborn, I would not be

22

able to tell you what that child's sexual

23

orientation is going to be.

24
25

Q.

In paragraph 15 of Exhibit 2, you

describe the continuum of sexual orientation.

Letitia Anne Peplau

June 17, 2011
Page 36

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L.A. Peplau, Ph.D.

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(Copy of paper by Herek Norton

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Allen and Sims was marked as

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Defendants' Exhibit 4 for

5

identification.)

6

Q.

Do you recognize that, Dr. Peplau?

7

A.

Yes.

8

Q.

What is that?

9

A.

This is a copy of the paper by Herek

10

Norton Allen and Sims that I was referring to

11

in paragraph 25.

12
13

Q.

If I could have you turn to page 186,

which is table 3 of this article.

14

You wrote, "95 percent of gay men

15

experience no choice at all or very little

16

choice about their sexual orientation."

17

Looking at table 3, is it fair to say

18

that nearly 7 percent of gay men felt that

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they had a small amount of choice in their

20

sexuality and 5.2 percent said that they

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experienced a fair amount or a great deal of

22

choice in their sexuality?

23

MR. BENSON:

24
25

Q.

Objection to form.

Let me split that up.
Is it fair to say that 7 percent of

Letitia Anne Peplau

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L.A. Peplau, Ph.D.

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gay men felt that they had a small amount of

3

choice in their sexuality?

4

A.

Yes.

5

Q.

And is it fair to say that 5.2

6

percent experienced a fair amount or great

7

deal of choice in their sexuality?

8

A.

Yes.

9

Q.

With regard to lesbians, doesn't the

10

study show that 31.6 percent of lesbian women

11

experience a small amount or a fair amount of

12

choice in their sexuality?

13

MR. BENSON:

14

Compound.

15

Q.

Objection to form.

I will split that up.

16

Does this study show that 15.2

17

percent of lesbians experience a small amount

18

of choice in their sexual orientation?

19

A.

Yes, that's what the study shows.

20

Q.

And does this study show that 16.4

21

percent of lesbians experience a fair amount

22

or a great deal of choice in their sexual

23

orientation?

24

A.

Yes, that's what this study shows.

25

Q.

And looking at the last column there,

Letitia Anne Peplau

June 17, 2011
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L.A. Peplau, Ph.D.

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on table 3, if one factors in gays, lesbians

3

and bisexuals, both bisexual men and women,

4

isn't it true that 14.2 percent experience a

5

small amount of choice in their sexual

6

orientation?

7

A.

Yes, that's what the table shows.

8

Q.

Is it true that 25.2 percent

9
10
11

experience a fair amount or a great deal of
choice in their sexual orientation?
A.

So just so I am clear, what we are

12

doing here is we are adding in bisexuals, who

13

are people who are attracted to both men and

14

women, and when you do that you find that the

15

percent of lumping together lesbians, gay men

16

and bisexuals who report they have a fair

17

amount or a great deal of choice is 25

18

percent.

19
20

And, yes, that's what the table
shows.

21

MR. DUGAN:

Mark that Exhibit 5.

22

(Paper by Greg Herek was

23

marked as Defendants' Exhibit 5

24

for identification.)

25

Q.

Do you recognize Exhibit 5,

Name of Cases:
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
EDITH SCHLAIN WINDSOR,
in her capacity as Executor of the Estate of THEA CLARA SPYER,
Plaintiff,
v.
THE UNITED STATES OF AMERICA,
Defendant.
(10 Civ. 8435) (BSJ) (JCF)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
JOANNE PEDERSEN & ANN MEITZEN, GERALD V. PASSARO II, LYNDA
DEFORGE & RAQUEL ARDIN, JANET GELLER & JOANNE MARQUIS,
SUZANNE & GERALDINE ARTIS, BRADLEY KLEINERMAN & JAMES GEHRE,
and DAMON SAVOY & JOHN WEISS,
Plaintiffs,
v.
OFFICE OF PERSONNEL MANAGEMENT, TIMOTHY F. GEITHNER, in his official
capacity as the Secretary of the Treasury, and HILDA L. SOLIS, in her official capacity
as the Secretary of Labor, MICHAEL J. ASTRUE, in his official capacity as the
Commissioner of the Social Security Administration, UNITED STATES POSTAL
SERVICE, JOHN E. POTTER, in his official capacity as The Postmaster General of the
United States of America, DOUGLAS H. SHULMAN, in his official capacity as the
Commissioner of Internal Revenue, ERIC H. HOLDER, JR., in his official capacity as
United States Attorney General, JOHN WALSH, in his official capacity as Acting
Comptroller of the Currency, and THE UNITED STATES OF AMERICA,
Defendants.
(310-CV-1750) (VLB)
Date of Deposition:

Friday, June 17, 2011

Name of Witness:

Letitia Anne Peplau, Ph.D.

Letitia Anne Peplau Errata Sheet for June 17, 2011 Deposition
I wish to make the following changes, for the following reasons:

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“I see against relationships of lesbians and gay men.”

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Letitia Anne Peplau Errata Sheet for June 17, 2011 Deposition
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“All close same sex relationships between friends, relatives,
coworkers, acquaintances or others which shall be considered
homosexual relationships.”

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“Of all close same-sex relationships between friends, relatives,
coworkers, acquaintances, or others, which shall be considered
homosexual relationships?”

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“harms not individuals in legal same sex marriage but gay men,
lesbians and bisexuals as a group.”

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“harm not only individuals in legal same-sex marriages, but
gay men, lesbians, and bisexuals as a group.”

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Letitia Anne Peplau Errata Sheet for June 17, 2011 Deposition
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Letitia Anne Peplau Errata Sheet for June 17, 2011 Deposition
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Letitia Anne Peplau Errata Sheet for June 17, 2011 Deposition
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Letitia Anne Peplau Errata Sheet for June 17, 2011 Deposition
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Letitia Anne Peplau Errata Sheet for June 17, 2011 Deposition
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