Northern California Record

Monday, July 15, 2019

Court maintains 'conversion therapy' ban, saying it does not affect First Amendment

By Kerry Goff | Oct 7, 2016

SAN FRANCISCO – The U.S. Court of Appeals for the Ninth Circuit recently upheld a 2012 law that prohibits licensed mental health practitioners from subjecting minors to harmful "conversion therapy" practices that attempt to change their sexual orientation or gender identity.

Gov. Jerry Brown (D) signed the bill into law in 2012, arguing that conversion therapy was unethical and harmful, based on a number of studies.

“These practices have no basis in science or medicine, and they will now be relegated to the dustbin of quackery,” he said.

A Harrisburg district court will consider whether a City of Harrisburg buffer zone law violates free speech. | Photo by Evlakhov Valeriy, Shutterstock

Despite such support for the bill, it raised some issues with the opposition.

According to a July 4 article in the Los Angeles Daily News, Donald Welch, a minister and a family therapist, argued that the law infringed on his religious freedom and minors’ rights to privacy.

“The pastor and other opponents of the therapy ban argued the law violated First Amendment religious freedom rights,” an ABC 10 News report said on Aug. 23. “The court tossed out a similar lawsuit in 2014 and the U.S. Third Circuit Court of Appeals upheld New Jersey's ban the same year. The U.S. Supreme Court declined to hear both cases.”

According to the Aug. 23 Associated Press story about the court’s decision, the Ninth Circuit argued that the ban does not violate Welch’s religious rights, or anyone’s religious rights, because the law is limited to licensed therapists. The court stressed that the law was not aimed at religious leaders.

In a February 2 article in the Huffington Post, it explained that U.S. Rep. Ted Lieu (D-Calif.) introduced further legislation known as the Therapeutic Fraud Prevention Act, which could take the law to all 50 states.

“If passed, the law would classify conversion therapy as a fraudulent practice that would be illegal under the Federal Trade Commission Act.,” the article said. “The law would also ban all advertising that claims the therapy can successfully change a person’s sexual orientation or gender identity.”

Furthermore, Lieu explained that the conversion therapy law should also protect adults.

“Lieu’s federal bill goes further than any of the state bans on the practice, which forbid licensed therapists from offering the service to minors, but still allow them to perform it on adults,” the Huffington Post article said.

In addition to protecting people from undergoing the therapy, Lieu argued that the bill could be a considerable blow to opponents of gay rights.

Even within psychology and similar professions, there is some debate as to how much the law should get involved.

“Opponents of the law, including the National Association for Research and Therapy of Homosexuality, say there is no scientific basis for banning such therapies,” an August 2012 Wall Street Journal article said. “Christopher Rosik, a psychologist, said that Mr. Lieu's claims represented ‘rhetoric, not research,’ and that the legislation had a ‘clear intent to intimidate therapists and supplant the rights of parents.’"

Even the California Psychological Association initially opposed the bill, citing concern about the intrusion of the legislature into clinical practice efforts to change sexual orientation, the Wall Street Journal article said.

Much like the recent decision, Judge Susan P. Graber, the author of the 2014 Ninth Circuit panel opinion, argued that psychotherapy should be viewed as conduct rather than speech.

“The law regulates only treatment, while leaving mental health providers free to discuss and recommend, or recommend against," the judge said.


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U.S. Court of Appeals for the Ninth Circuit