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.
In friend-of-the-court briefs in support of the plaintiffs, groups told the appellate court that homosexuality is not inborn, is potentially changeable, and that people with same-sex attractions have benefited from sexual-orientation change efforts.
In cases where youths develop homosexual attractions because of negative or traumatic experiences, they “need therapy for the trauma, not affirmation of a ‘gay identity,’” said the American College of Pediatricians. People can, and do, make “the personal decision to leave homosexuality,” said Parents and Friends of Ex-Gays and Gays.
But many professional, medical, mental health and child welfare groups filed briefs in support of the law.
“According to the American Psychological Association and other leading mental-health organizations, attempts to change sexual orientation may increase distress, depression and suicidal tendencies dangers that victims of sexual abuse are particularly ill-equipped to handle,” wrote Dr. Tonya Chaffee and six other doctors.
Officials for the city and county of San Francisco said they witness “the harms caused by sexual-orientation change efforts,” and a Colorado man, Ryan Kendall, said in a brief with other “survivors,” that the therapy “tore apart his family” and led to a 15-year estrangement from his family.
On April 5, California state Sen. Ted W. Lieu, author of SB 1172, told Harvard Law School students that the law is constitutional.
“If plaintiffs’ arguments were correct, then government could never regulate the medical profession because virtually all doctors engage in some sort of speech,” said Mr. Lieu, who has a law degree from Georgetown University Law Center.
That is why the U.S. Supreme Court said in Planned Parenthood v. Casey that when speech is “part of the practice of medicine, [it is] subject to reasonable licensing and regulation by the state,” Mr. Lieu said at the eighth annual Harvard Lambda Legal Advocacy Conference.
It is “unconscionable,” he said, that states permit children to receive “dangerous quackery” when such therapies do not treat an actual disease or health problem but can cause children to experience depression, guilt or self-hatred, or even commit suicide.
In New Jersey and Pennsylvania, lawmakers are taking steps to pass a ban on sexual-orientation change efforts. New Jersey Gov. Chris Christie, a Republican, made headlines in March when an aide said he did not support conversion therapies. Mr. Christie, however, has not said what he would do with a bill banning such therapies.