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En Banc Denied in Conversion Therapy Case

By William Peacock, Esq. on February 03, 2014 | Last updated on March 21, 2019

Back in August, the Ninth Circuit handed down a decision in a case that pitted free speech concerns against the state's interest in protecting minors from harmful "conversion" therapy, meant to cure individuals of homosexuality. California became the first state to ban such therapy in October 2012.

While district courts split on the issue, the Ninth Circuit's holding was clear: there was no speech, only conduct. And late last week, the court denied a rehearing in the case, over the dissent of three judges.

Ninth: Professional Conduct, Not Speech

The panel unanimously held that the restriction on a harmful form of therapy was 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, they can talk about it, they can recommend it, and they can make referrals out-of-state, but licensed therapists cannot themselves provide the treatment.

En Banc Denial

Wednesday's brief order republished the panel's opinion, after amendment, and denied a petition for rehearing en banc.

Dissent: Dangerous Free Speech Precedent

The dissent, penned by Justice O'Scannlain, took issue with the court classifying disfavored speech as "conduct." O'Scannlain also argued that the panel's opinion conflicted with binding Supreme Court precedent in Holder v. Humanitarian Law Project.

In Humanitarian Law Project, the plaintiffs challenged a federal statute that prohibited providing "material support" to terrorists. The Court refused to accept the government's argument that the law prohibited conduct rather than restricted speech, for, in that situation (and in this one as well), the "conduct triggering coverage under the statute consists of communicating a message."

The panel distinguished Humanitarian Law Project by pointing out that the activity here is therapeutic treatment rather than the political speech in the Supreme Court case. The dissent found the distinction dubious, noting that the Court explicitly rejected the argument that the expression at issue in that case was pure political speech.

Case Not Over?

The panel originally noted that one of the original plaintiffs had asserted free exercise claims which had gone unconsidered, as the court had decided the case on free speech grounds. The case was remanded for consideration of that issue.

And, of course, there's always the possibility of a petition for Supreme Court review.

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