A first-of-its-kind California law is going to court this week, when a panel of judges will hear testimony about whether mental health professionals have the right to talk with young clients about reducing their homosexual attractions or the state has the right to outlaw such “dangerous quackery.”
The 9th U.S. Circuit Court of Appeals in San Francisco will hear the case Wednesday, and its decision will have national implications because lawmakers in at least two states have expressed interest in crafting similar laws.
The California law, known as SB 1172, prohibits mental health professionals from providing “sexual-orientation change efforts,” under any circumstances, to clients younger than 18. Violators are subject to professional discipline, such as loss of license.
SB 1172 does not apply to therapies that affirm children’s and teens’ homosexual attractions.
Brad Dacus, president of the Pacific Justice Institute, which represents therapist clients in one of the two cases before the court, said the law “is a clear violation of the freedom of speech, free exercise of religion, the counselor-client patient privilege, and parental rights.”
“Rarely have I seen such legislation that is an affront on so many civil rights grounds at the same time,” said Mr. Dacus. “That’s why we at Pacific Justice Institute are committed to challenging this legislation all the way to the U.S. Supreme Court, if necessary.”
California Gov. Jerry Brown, a Democrat, backed by prominent gay rights, mental health and social service organizations, said the law is needed to protect children’s health.
“SB 1172 is an unremarkable exercise of the states’ power to regulate professional conduct,” California Attorney General Kamala Harris said in her brief to the appellate court.
“State-licensed psychologists are not free to use their license to ‘treat’ children with therapies that the State deems harmful, no matter what subjective value they attach to that ‘treatment,’” Ms. Harris wrote, adding that the therapies prohibited under SB 1172 are “discredited, ineffective, and unsafe.”
SB 1172 was supposed to have gone into effect Jan. 1, but two federal lawsuits were filed to stop it. One federal judge dismissed the request to block the law, while another federal judge ruled that the law was unconstitutional.
The 9th U.S. Circuit Court of Appeals temporarily enjoined the law, and Chief Judge Alex Kozinski, Judge Susan P. Graber and Judge Morgan Christen are slated to hear arguments Wednesday about whether the law should remain enjoined. The cases are Pickup v. Brown and Welch v. Brown.
“This statute violates the First Amendment because it prohibits a certain viewpoint on same-sex sexual attraction,” said Mat Staver, chairman of Liberty Counsel, which represents therapists David Pickup, Christopher Rosik, Joseph Nicolosi and Robert Vazzo; the National Association for Research and Therapy of Homosexuality; the American Association of Christian Counselors; and two families with sons undergoing sexual-orientation change therapies.
The law “allows counselors to provide, and clients to receive, only one viewpoint, namely affirmation and acceptance, but not ‘change,’ even if that is what the client seeks,” Mr. Staver said. “It’s unprecedented in scope because no state and no licensing authority has ever attempted to license only one side of a counselor’s message.”
The second lawsuit is brought by therapists Donald Welch and Anthony Duk, and counselor-in-training Aaron Bitzer, who are represented by the Pacific Justice Institute.