Ninth Circuit Upholds “Gay Conversion” Ban

A unanimous panel of the Ninth Circuit has upheld California’s ban on efforts by licensed mental health professionals to change the sexual orientation of minors, a practice often called gay conversion therapy because it’s sought by parents anxious to make their gay kids straight.  The opinion in Pickup v. Brown was written by Judge Susan Graber and joined by Judge Morgan Christen and Judge Alex Kozinski.  The court rejected a range of constitutional arguments grounded in professionals’ and patients’ speech rights, the freedom of association, and parents’ fundamental right to determine the upbringing of their children.  From the summary prepared by court personnel:

The panel held that Senate Bill 1172 regulates professional conduct, not speech and therefore was subject only to a rational basis review. The panel held that under its police power, California has authority to prohibit licensed mental health providers from administering therapies that the legislature has deemed harmful, and the fact that speech may be used to carry out those therapies does not turn the prohibitions of conduct into prohibitions of speech. The panel further concluded that the First Amendment does not prevent a state from regulating treatment even when that treatment is performed through speech alone. The panel concluded that the record demonstrated that the legislature acted rationally when it decided to protect the well-being of minors by prohibiting mental health providers from using “sexual orientation change efforts” on persons under 18.

California was the first state to ban the practice, which is condemned as unnecessary, ineffective, and potentially harmful by all major mental health professional associations.  New Jersey followed with similar legislation this year.  The bans do not apply to professional conversion therapy sought by adults, do not ban parents or religious authorities from trying to change sexual orientation in minors, and do not prevent anyone from expressing an opinion to anyone else about homosexuality or conversion therapy. 

The decision contains a brief summary of some of the methods that have been used over the years to make gay people straight. These include “aversive therapies” like inducing nausea, vomiting, or paralysis; administering electric shock; slapping the wrists of patients when they experience same-sex desires; and castration.  Non-aversive counseling uses “assertiveness and affection training with physical and social reinforcement to increase other-sex sexual behaviors.”  It also tries “to change gay men’s and lesbians’ thought patterns by reframing desires, redirecting thoughts, or using hypnosis.”

An example of such efforts was the subject of litigation filed last year by four gay men in New Jersey.  They sued for fraud, alleging that a clinic made them strip naked and attack effigies of their mothers with baseball bats.  In another case, a witness said that

a man had to break through a human barricade that I was a part of in order to seize two oranges that were meant to symbolize his testicles. He was then frenetically instructed to squeeze the juice from them and drink it and to put the oranges in his pants in order to represent ‘gaining his testicles’ the symbolic absence of them supposedly being the cause of his homosexuality.

Now, I have some pronounced libertarian policy tendencies, but I do think the state has a legitimate role in licensing medical and mental health professionals and in establishing minimal standards of ethical professional conduct (either through direct legislation, as here, or through professional orgnizations).  It can prohibit professionals from inflicting junk science harmful to minors.  The state can’t be allowed to curtail First Amendment or other constitutional rights when it establishes professional standards, but I’m comfortable with the panel’s conclusion that it did not act unconstitutionally in this ban.  As the panel pointed out, no precedents apply strict scrutiny to the regulation of medical or mental health treatment.  The line between “treatment” that can be regulated and “advocacy” that can’t be is not always an obvious one.  But to say that counseling is absolutely protected speech because it consists of talking is to say that there can be little or no regulation of what mental health professionals do to their patients.  The Constitution protects political and religious quackery, but not quackery administered to vulnerable minors under the guise of treatment for something that is not a sickness.

There was a time just a couple of generations ago when practically the whole mental health professional establishment regarded homosexuality as a sickness to be cured.  There were volumes of social science and psychological studies purporting to support that view.  Is it inconsist to support state bans on some kinds of treatment for homosexuality, based on what that very establishment tells us it now believes to be true?  I don’t think so.  The fact that we’ve reversed an erroneous and poisonous consensus only counsels caution.  It doesn’t mean we have to be agnostic about all learning on a subject or that we are forever disabled from legislating about it.  As long as we leave open the channels of criticism of the consensus, which the California law does, the First Amendment should not be understood to prevent us from the safest course of treatment.