Ban on Gay 'Conversion' Therapy Constitutional

Last October, California became the first state in the nation to prohibit mental health providers from engaging in sexual orientation change efforts (SOCE) with minors. The "conversion" therapies attempt to "cure" individuals of their homosexual and transgender leanings, and have been labeled by many as "quakery," including the state legislature and Governor Brown, who, when signing SB 1172, stated,

"This bill bans non-scientific 'therapies' that have driven young people to depression and suicide. These practices have no basis in science or medicine and they will now be relegated to the dustbin of quackery."

Proponents of the bill, however, argued that it was a restriction on their free speech rights and the rights of parents to choose appropriate medical treatment. Because the law bans the practice of these types of therapy by licensed therapists, they are forced to choose between treating their patients according to their professional judgment, or keeping their license.

Courts' Confusion

The free speech issue, being far from cut-and-dried, confounded the lower courts. Two federal district courts in Sacramento came to differing conclusions before the Ninth Circuit enjoined enforcement of the law until it had a chance to hear the case.

Even the oral arguments reflected the difficulty in free speech versus medical treatment, with Chief Judge Kozinski flip-flopping between asking questions about the legislature's ability to ban harmful treatments, then stating that he didn't see any compelling justification for restricting speech, reported Courthouse News Service.

No Ban on Speech, Only Ban on Therapy

Whatever confusion appeared during oral arguments, it has apparently been resolved. The unanimous opinion of the panel held that the restriction on a therapy that the legislature felt was harmful for minors was a constitutional, stating,

"Senate Bill 1172 regulates conduct. It bans a form of medical treatment for minors; it does nothing to prevent licensed therapists from discussing the pros and cons of SOCE with their patients. Senate Bill 1172 merely prohibits licensed mental health providers from engaging in SOCE with minors."

In other words, licensed therapists can discuss the therapy, can recommend it, but can't provide it. They can, however, refer the patient to an out-of-state or unlicensed provider.

The panel also held that a parent's right to choose treatments does not extend to those which the state has found are reasonably harmful.

Religious Challenge to Follow?

In a footnote, the court noted that in one of the two cases before them, the Welch plaintiffs had raised free exercise issues in the district court, but because the court ruled on other grounds, it failed to address the religious freedom challenge. The Ninth Circuit noted that it may do so now, in the first instance, on remand.

Related Resources:

• Pickup v. Brown (Ninth Circuit Court of Appeals)
• Court: State ban on gay therapy is constitutional (San Francisco Chronicle)
• Does Batson Apply to Gay Jurors? (FindLaw's Ninth Circuit Blog)