At least two states have enacted legal restrictions on gay conversion therapy. These aren’t complete bans but they are significant limitations.
Supporters of gay conversion therapy argue that current practices are verbal - they convince the subject to change from homosexuality to heterosexuality. And as such, these practices are protected the First Amendment.
Opponents of gay conversion therapy argue that the state can set limits on speech in some cases - such as regulating professional therapy standards. They say this isn’t an issue of regulating speech; it’s an issue of regulating an alleged therapy which has not been proven to help its patients and may instead be causing them harm. They say that the state can restrict “quack” therapies even if the therapies are just verbal.
I have to admit I’m undecided. I don’t see any need for gay conversion therapy and I have my suspicions about it ever actually working. But if a gay person wants to try to convert themselves to heterosexuality, I don’t see where the state should prohibit it. I don’t see how the state can call a verbal procedure “harmful” - it seems to me that at most it would be useless but not cause any actual harm.
One of the points that the Ninth Circuit makes is that homosexuality was removed from the DSM in the 1970s. The professional regulation of the therapy in quesion (“SOCE”) in this case thus makes more sense. As the 9th Circuit decision points out, people who wish to undergo the therapy can still do so under the law in question. The law simply prevents therapists licensed in CA from engaging in the therapy (“SOCE”):
[QUOTE=Ninth Circuit Court of Appeals] Importantly, SB 1172 does not do any of the following:
• Prevent mental health providers from communicating
with the public about SOCE
• Prevent mental health providers from expressing their
views to patients, whether children or adults, about
SOCE, homosexuality, or any other topic
• Prevent mental health providers from recommending
SOCE to patients, whether children or adults
• Prevent mental health providers from administering
SOCE to any person who is 18 years of age or older
• Prevent mental health providers from referringminors
to unlicensed counselors, such as religious leaders
• Prevent unlicensed providers, such as religious
leaders, from administering SOCE to children or
adults
• Prevent minors from seeking SOCE from mental
health providers in other states
Instead, SB 1172 does just one thing: it requires licensed
mental health providers in California who wish to engage in
“practices . . . that seek to change a [minor’s] sexualPICKUP V. BROWN 13
orientation” either to wait until the minor turns 18 or be
subject to professional discipline. Thus, SB 1172 regulates
the provision of medical treatment, but leaves mental health
providers free to discuss or recommend treatment and to
express their views on any topic.
[/QUOTE]
(bolding mine)
So viewed as a regulation of a profession (which currently does not view homosexuality as a disorder), the law is akin to the State regulation of medical practices.
Is a blanket ban on gay conversion therapy unconstitutional? Sure. Is a limited ban on the practice as administered by professionals licensed by the state unconstitutional? I don’t see how.
I read the wikipedia article you linked to. And I read all the sources it cited. And eventually everyone of them ended with somebody saying the same thing you started with - that they just “know” it’s harmful. Nobody seems to be able to say “and here’s the evidence that proves it’s harmful.”
If the basis of restricting professionals is that false therapies can cause harm then shouldn’t there be a requirement to show harm is possible? In gay conversion therapy you can’t even demonstrate negative harm like a person being harmed because they forwent other more effective treatment - a gay person who undergoes ineffective gay conversion therapy will just end up still gay.
As I read the linked article, the “ban” only applies to licensed individuals providing this “treatment” to minors. I believe the state is allowed to do this under the Constitution.
Well, the court found rational basis applied, so all the State needed to prove was that restriction was rationally related to its interest in protecting minors. At any rate, the court found that the State rationally relied on the expert opinion of professional associations:
[QUOTE=9th Circuit]
The record demonstrates that the legislature acted
rationally when it decided to protect the well-being of minors
by prohibiting mental health providers from using SOCE on
persons under 18. The legislature relied on the report of the
Task Force of the American Psychological Association,
which concluded that SOCE has not been demonstrated to be
effective and that there have been anecdotal reports of harm,
including depression, suicidal thoughts or actions, and
substance abuse. The legislature also relied on the opinions
of many other professional organizations. Each of those
organizations opposed the use of SOCE, concluding, among
other things, that homosexuality is not an illness and does not
require treatment (American School Counselor Association),
SOCE therapy can provoke guilt and anxiety (American
Academy of Pediatrics), it may be harmful (National
Association of Social Workers), and it may contribute to an
enduring sense of stigma and self-criticism (American
Psychoanalytic Association). Although the legislature also
had before it some evidence that SOCE is safe and effective,
the overwhelming consensus was that SOCE was harmful and
ineffective. On this record, we have no trouble concluding that
the legislature acted rationally by relying on that
consensus.
Plaintiffs argue that the legislature acted irrationally when
it banned SOCE for minors because there is a lack of
scientifically credible proof of harm. But, under rational
basis review, “[w]e ask only whether there are plausible
reasons for [the legislature’s] action, and if there are, our
inquiry is at an end.” Romero-Ochoa v. Holder, 712 F.3d
1328, 1331 (9th Cir. 2013) (internal quotation marks
omitted).
[/QUOTE]
In this specific case, yes. But what’s the general principle at work behind this? In most cases where a person can’t exercise a right on their own due to being a minor, the right is transferred to their parent or guardian. That’s generally the case over issues like healthcare, education, and religion - which would seem to be the applicable analogies here. On what grounds is the state taking away the right from both the minor and his or her guardian?
But in that ruling it states that the reports of harm are anecdotal. That seems too broad a standard to me. Couldn’t a judge rule that there are anecdotal reports of people being harmed by being a Mormon, for example, and therefore prohibit parents from raising their child in that faith?
Bingo. The law in California bans state-licensed mental health providers from engaging in
“sexual orientation change efforts." It doesn’t ban prayer groups or family “interventions.”
You could probably also treat it as fraud: If someone pays for something that doesn’t work, even if there’s no other harm done, the seller is still in the wrong.
Of course, this wouldn’t stop anyone from doing it for free.
Some of the reports are anecdotal. But the State also relied on the professional opinions of therapists, psychologists, and pediatricians who indicated that the therapy was of no benefit and even harmful.
The analogy to Mormons does not work in this case. The law provides for a very narrow regulation on the conduct of therapists (who have to be licensed by the State in order to practice anyway). It’s doesn’t prohibit anybody else from performing the therapy.
As I noted above, the court also made a point to mention that homosexuality has been removed from the DSM as a disorder. I don’t think this inclusion was gratuitous.
Are there limits on that principle? Could a state, for example, regulate all stores from selling firearms on the basis that it’s in the public interest? If you can use public interest to override one constitutional right why not another?
Are you saying there were both anecdotal reports and peer-reviewed scientific studies that supported this view but for some reason the ruling only cited the anecdotal reports? That seems extremely unlikely. I’m going to assume that if the ruling didn’t mention non-anecdotal reports it’s because they don’t exist.
And if there isn’t scientific evidence that gay conversion therapy is harmful, then therapists, psychologists, and pediatricians are just stating their personal opinions. Keep in mind the consensus of the medical and psychiatric community fifty years ago would have been that homosexuality was a mental disorder - that shows you can’t rely on personal opinions even among experts. Any opinion that can’t be backed up by real evidence doesn’t meet the standard needed to override the First Amendment.