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 [...]