A first-of-its-kind California law banning therapies to change children's sexual orientation has been blocked temporarily, but lawyers are preparing for a court battle that could come soon.
The proceedings are being watched closely by gay rights groups as they are encouraging lawmakers in other states to outlaw such gay-to-straight "conversion" therapies.
The new law, S.B. 1172, prohibits mental health professionals in California from providing "sexual-orientation change efforts" (SOCE), under any circumstances, to people younger than 18.
The law is needed to protect gay children from conversion-therapy "quackery," said authors of the law, including California state Sen. Ted Lieu.
Opponents of the law argue that it's possible for some people with same-sex attractions to reorient themselves to heterosexual attractions and that sexual-orientation change therapies can benefit children who are confused about their sexuality or suffered sexual abuse.
After the law was signed in September by California Gov. Jerry Brown, opponents filed separate federal lawsuits to stop it, citing First Amendment constitutional arguments.
In one lawsuit, two mental health professionals and a man who said he benefited from SOCE argued that S.B. 1172 would impede their efforts to offer SOCE and chilled their rights to free speech. U.S. District Judge William B. Shubb agreed and enjoined the law from being enforced -- but only on the three plaintiffs.
The second lawsuit was filed by mental health professional David Pickup and others, including two youths who are receiving change therapy. U.S. District Judge Kimberly J. Mueller heard their arguments but found no justification to block S.B. 1172 from going into effect Jan. 1.
The Pickup plaintiffs appealed, and on Dec. 21, three judges of the 9th U.S. Circuit Court of Appeals issued a preliminary injunction on S.B. 1172 pending its review.
"The minors we represent and their families are thrilled about the injunction," said Mathew D. Staver, founder and chairman of Liberty Counsel, which represents the Pickup plaintiffs.
On Wednesday, Liberty Counsel filed legal papers for the review; others are expected to follow suit by the end of January.
The appellate court has yet to schedule arguments on the case, a spokeswoman for California Attorney General Kamala D. Harris said this week. According to Equality California and the National Center for Lesbian Rights, the case is on a "fast track," with a ruling expected early in 2013.
In her defense of S.B. 1172, Ms. Harris said the state correctly outlawed SOCE for minors because "every mainstream professional mental health organization" has concluded that it is ineffective and unsafe.
SOCE is a "potentially dangerous relic from an era when homosexuality was pathologized and criminalized," Ms. Harris wrote. Today, the scientific and professional consensus says that "homosexuality is a normal expression of human sexuality, and not a disease, condition, or disorder in need of a 'cure.'"
She and other supporters of the law point to a lengthy 2009 report on SOCE by the American Psychological Association that found that SOCE had no scientific basis, could cause harm to some people, and should not be promoted.
The same APA report, however, conceded that "there are no scientifically rigorous studies of recent SOCE that would enable us to make a definitive statement about whether recent SOCE is safe or harmful, and for whom," Mr. Staver said in his brief to the appellate court. In fact, sexual-orientation issues in children "are virtually unexamined," he said, adding that there is no empirical evidence that SOCE harms minors.
The three-judge panel granting the emergency injunction did not elaborate on their reasoning. The panel included Judges Alfred T. Goodwin, Edward Leavy and Milan D. Smith Jr.
Meanwhile, Rep. Jackie Speier, California Democrat, has introduced a House resolution denouncing SOCE. New Jersey lawmakers have introduced a bill similar to S.B. 1172, and gay rights advocates say they expect to see more such bills introduced this year.
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