Anti-Transgender Panel of cranks at Heritage Foundation
(L-R) Ryan T. Anderson, Michelle Cretella, Paul Hruz, Allan Josephson

Image via YouTube/Heritage Foundation

On Thursday, March 28, Dr. Allan Josephson sued the University of Louisville for viewpoint discrimination. He is represented by Alliance Defending Freedom. Until two years ago, Josephson was head of pediatric psychiatry at the university. Then in February, 2019 the university informed Josephson that his contract would no be renewed for the following academic year.

Crackpot discrimination is lawful

In October, 2017, Josephson was a panelist — along with Ryan T. Anderson, Paul Hruz and Michelle Cretella for an anti-transgender seminar at Heritage Foundation. At the event Josephson promoted a form of conversion therapy that has been thoroughly discredited. These panelists fooled very few people. This was a group of warriors for Jesus.

According to Alliance Defending Freedom, Josephson was demoted the following month — as well he should have been. Josephson was promoting misinformation that was in direct conflict with his own professional organization, the American Psychiatric Association. One can disagree with the APA but Josephson did so without a reliance on research or any evidence in support of his views.

I do not know if Josephson’s participation on the Heritage panel was the cause for his demotion. However, his assertions were outside of Josephson’s training, experience and expertise which means that he had been irresponsible.

The inexpert witness:

Allan Josephson became part of Alliance Defending Freedom’s stable of anti-LGBT “expert” witnesses for which he could be richly compensated. Josephson and endocrinologist Paul Hruz first met at an ADF conference. ADF was seeking doctors to offer testimony in support of school districts that discriminated against transgender students.

Hruz and Josephson showed up to testify on behalf of ADF and St. John’s County Florida school board. The school board was being sued by Drew Adams, a 17-year-old trans boy represented by the ACLU and Lambda Legal. Dr. Josephson admitted in court that he is not an expert in treating transgender patients or in treating patients with gender dysphoria and that he has not developed any expertise in the issues that are presented in this case. That could contradict his presentation on the Heritage Foundation panel where he claimed to have cured patients.

One of Adams’ lawyers informed the judge:

In forty-one years, Dr. Josephson has never published a study analyzing transgender identity or healthcare, or gender dysphoria, has not been engaged in any peer-reviewed analyses in these areas and has not engaged in any scientific studies in this area including any research on related topics. Dr. Josephson has never given a presentation on transgender identity or gender dysphoria in any serious medical or scientific setting. He has never undertaken any coursework to better understand transgender healthcare issues, never been a part of any of the professional organizations that promulgate standards of care for transgender healthcare, and (unlike his colleagues at University of Louisville) he does not list LGBT healthcare as an area of interest or specialty. Dr. Josephson does not teach any courses to medical students regarding LGBT care, though his colleagues do.

According to Alliance Defending Freedom, Josephson’s work as a professional witness contributed to his contract not being renewed. ADF cannot sue for religious discrimination because Josephson tortured logic and common sense to remove his religious objection from his arguments.

Josephson was claiming erudition and expertise that he did not have. Then he was offering testimony that was inconsistent with medical science. He did so, in my opinion, because of a religious objection to transgender people. The end result is that Josephson was intellectually dishonest and professionally negligent.

If in fact his activities as an expert witness resulted in his contract not being renewed Josephson was not disciplined for his speech but for unprofessional conduct.

According to ADF

In 2014, Dr. Josephson was approached to answer questions about the
treatment of youth experiencing gender dysphoria, given his national academic
leadership in child and adolescent psychiatry.

By whom and how is this relevant?

In 2014 and 2015, Dr. Josephson consulted with Alliance Defending Freedom
in several cases involving youth experiencing gender dysphoria who demanded to use
the showers, restrooms, and locker rooms opposite to their biological sex in the public

Consultation for which Josephson was unqualified.

In 2016, Dr. Josephson served as an expert witness in Carcano v. McCrory,
federal litigation over North Carolina’s Public Facilities Privacy & Security Act.

That was the infamous discriminatory and bigoted HB2. Josephson gave the usual Christian presentation without mentioning Jesus. Sex is fixed at birth by chromosomes and so on. He claimed that trans people were delusional.

ADF goes on at considerably length to claim that Josephson became the victim of a vast LGBT conspiracy to remove him first from his position as a department head and ultimately from the faculty. ADF claims that the University of Louisville’s actions amounted to unconstitutional violation of Josephson’ free speech rights under the First Amendment. They also claim a violation of equal protection and due process.

Off topic a bit, Alliance Defending Freedom is an anti-LGBT hate group. It is unfortunate that they have never demonstrated concerns for the equal protection and due process rights of LGBT people. Certainly that contributes to their designation as a hate group by Southern Poverty Law Center.

Getting back to Josephson, under the First Amendment the government cannot abridge one’s freedom of speech. University of Louisville is a public university so they are obliged accordingly. However, what ADF fails to separate is the curtailment of speech with its consequences. In no way, it seems, did the university curtail Josephson’s speech. In fact, as required by policy, they gave him permission to be an expert witness.

However the freedom to speak does not mean that the speaker cannot be held responsible for objectionable speech. For example, suppose a well regarded professor gave a speech revealing him to be a neo-Nazi or a Klansman. I think that we would all expect Jews, African-Americans and those with sympathies for Jews and African-Americans to be extremely upset with the professor’s abject racism and anti-Semitism. It might very well lead to that professor’s discharge were he in the sociology department.

What Josephson did is actually worse. Using his credibility as a medical doctor and as a university department head and then claiming to have unique expertise regarding gender dysphoria, he was promoting misinformation about transgender people based on bigotry. The fact that the bigotry might have been the result of religious belief doesn’t alter the fact that it was unacceptable. The fact that the intolerance was directed at a sexual minority disapproved of by conservative Christians makes it no more acceptable than the same intolerance directed at blacks or Jews.

Aside from the bigotry, Dr. Josephson revealed that he is unprofessional and intellectually dishonest. I have not seen Josephson’s contract and ADF did not attach it to the complaint as an exhibit (which might be telling). I suspect that university leaders are free to use their professional judgment in evaluating the professionalism and suitability of an employee. That employee’s speech, whether on or off campus, would be an element of that evaluation without infringing on his constitutional rights. I suspect that the employment contract is the document on which this case will be decided.

This case is likely to go on for years. If ADF loses at trial it is a virtual certainty that ADF will appeal to the very conservative Sixth Circuit Court of Appeals. (Trump has appointed six of the sixteen active judges.) If ADF loses there they will appeal to the Supreme Court. ADF is fooling no one. They are representing Allan Josephson because of mutual Christian beliefs on which Josephson’s conduct has been based.

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By David Cary Hart

Retired CEO. Formerly a W.E. Deming-trained quality-management consultant. Now just a cranky Jewish queer. Gay cis. He/Him/His.