Federal Judge Enjoins California’s Conversion Therapy Ban

California flagU.S. District Court Judge William Shubb has issued a temporary injunction to block enforcement of California’s ban on licensed psychotherapists treating gay minors to change their sexual orientation. Such conversion or reparative therapy was declared scientifically unsupported and potentially harmful. When enacted, some of us raised concerns under the first amendment. Shubb found those concerns to be critical in imposing the injunction.

The law, SB 1172, prohibits a mental health provider from engaging in “sexual orientation change efforts” with a patient under 18 — declaring therapists and counselors who use such efforts on clients under 18 to be engaging in unprofessional conduct and subject to discipline by state licensing boards. However, Shubb declared that “Even if SB 1172 is characterized as primarily aimed at regulating conduct, it also extends to forms of (conversion therapy) that utilize speech and, at a minimum, regulates conduct that has an incidental effect on speech.”

The ruling only enjoins the law as it relates to the parties — psychiatrist Anthony Duk, marriage and family therapist Donald Welch, and Aaron Bitzer, a former patient who is studying to become a counselor.

Shubb wrote that “SB 1172 draws a line in the sand governing a therapy session and the moment that the mental health provider’s speech seeks to change an individual’s sexual orientation, including a patient’s behavior, gender expression, or sexual or romantic attractions or feelings toward individuals of the same sex, the mental health provider can no longer speak.” The court found such a law is not content or viewpoint neutral for purposes of free speech.

I find this a close question. On one hand, if the medical community finds a practice to be clearly harmful and unsupported, it would seem appropriate to bar. However, such questions are usually left to the governing medical or professional association rather than legislated in this fashion. There are also serious questions on the scope of the language of the law.

These concerns are evident in the definitional section:

(1) “Sexual orientation change efforts” means any practices by mental health providers that seek to change an individual’s sexual orientation. This includes efforts to change behaviors or gender expressions, or to eliminate or reduce sexual or romantic attractions or feelings toward individuals of the same sex.
(2) “Sexual orientation change efforts” does not include psychotherapies that: (A) provide acceptance, support, and understanding of clients or the facilitation of clients’ coping, social support, and identity exploration and development, including sexual orientation-neutral interventions to prevent or address unlawful conduct or unsafe sexual practices; and (B) do not seek to change sexual orientation.

Professional associations have spoken out against this form of therapy, though it is not clear that anyone has been disciplined for such therapy. As stated in the legislation:

(a) Being lesbian, gay, or bisexual is not a disease, disorder, illness, deficiency, or shortcoming. The major professional associations of mental health practitioners and researchers in the United States have recognized this fact for nearly 40 years.
(b) The American Psychological Association convened a Task Force on Appropriate Therapeutic Responses to Sexual Orientation. The task force conducted a systematic review of peer-reviewed journal literature on sexual orientation change efforts, and issued a report in 2009. The task force concluded that sexual orientation change efforts can pose critical health risks to lesbian, gay, and bisexual people, including confusion, depression, guilt, helplessness, hopelessness, shame, social withdrawal, suicidality, substance abuse, stress, disappointment, self-blame, decreased self-esteem and authenticity to others, increased self-hatred, hostility and blame toward parents, feelings of anger and betrayal, loss of friends and potential romantic partners, problems in sexual and emotional intimacy, sexual dysfunction, high-risk sexual behaviors, a feeling of being dehumanized and untrue to self, a loss of faith, and a sense of having wasted time and resources.
(c) The American Psychological Association issued a resolution on Appropriate Affirmative Responses to Sexual Orientation Distress and Change Efforts in 2009, which states: “[T]he [American Psychological Association] advises parents, guardians, young people, and their families to avoid sexual orientation change efforts that portray homosexuality as a mental illness or developmental disorder and to seek psychotherapy, social support, and educational services that provide accurate information on sexual orientation and sexuality, increase family and school support, and reduce rejection of sexual minority youth.”
(d) The American Psychiatric Association published a position statement in March of 2000 in which it stated:
“Psychotherapeutic modalities to convert or ‘repair’ homosexuality are based on developmental theories whose scientific validity is questionable. Furthermore, anecdotal reports of ‘cures’ are counterbalanced by anecdotal claims of psychological harm. In the last four decades, ‘reparative’ therapists have not produced any rigorous scientific research to substantiate their claims of cure. Until there is such research available, [the American Psychiatric Association] recommends that ethical practitioners refrain from attempts to change individuals’ sexual orientation, keeping in mind the medical dictum to first, do no harm.
The potential risks of reparative therapy are great, including depression, anxiety and self-destructive behavior, since therapist alignment with societal prejudices against homosexuality may reinforce self-hatred already experienced by the patient. Many patients who have undergone reparative therapy relate that they were inaccurately told that homosexuals are lonely, unhappy individuals who never achieve acceptance or satisfaction. The possibility that the person might achieve happiness and satisfying interpersonal relationships as a gay man or lesbian is not presented, nor are alternative approaches to dealing with the effects of societal stigmatization discussed.
Therefore, the American Psychiatric Association opposes any psychiatric treatment such as reparative or conversion therapy which is based upon the assumption that homosexuality per se is a mental disorder or based upon the a priori assumption that a patient should change his/her sexual homosexual orientation.”
(e) The American School Counselor Association’s position statement on professional school counselors and lesbian, gay, bisexual, transgendered, and questioning (LGBTQ) youth states: “It is not the role of the professional school counselor to attempt to change a student’s sexual orientation/gender identity but instead to provide support to LGBTQ students to promote student achievement and personal well-being. Recognizing that sexual orientation is not an illness and does not require treatment, professional school counselors may provide individual student planning or responsive services to LGBTQ students to promote self-acceptance, deal with social acceptance, understand issues related to coming out, including issues that families may face when a student goes through this process and identify appropriate community resources.”
(f) The American Academy of Pediatrics in 1993 published an article in its journal, Pediatrics, stating: “Therapy directed at specifically changing sexual orientation is contraindicated, since it can provoke guilt and anxiety while having little or no potential for achieving changes in orientation.”
(g) The American Medical Association Council on Scientific Affairs prepared a report in 1994 in which it stated: “Aversion therapy (a behavioral or medical intervention which pairs unwanted behavior, in this case, homosexual behavior, with unpleasant sensations or aversive consequences) is no longer recommended for gay men and lesbians. Through psychotherapy, gay men and lesbians can become comfortable with their sexual orientation and understand the societal response to it.”
(h) The National Association of Social Workers prepared a 1997 policy statement in which it stated: “Social stigmatization of lesbian, gay and bisexual people is widespread and is a primary motivating factor in leading some people to seek sexual orientation changes. Sexual orientation conversion therapies assume that homosexual orientation is both pathological and freely chosen. No data demonstrates that reparative or conversion therapies are effective, and, in fact, they may be harmful.”
(i) The American Counseling Association Governing Council issued a position statement in April of 1999, and in it the council states: “We oppose ‘the promotion of “reparative therapy” as a “cure” for individuals who are homosexual.’”
(j) The American Psychoanalytic Association issued a position statement in June 2012 on attempts to change sexual orientation, gender, identity, or gender expression, and in it the association states: “As with any societal prejudice, bias against individuals based on actual or perceived sexual orientation, gender identity or gender expression negatively affects mental health, contributing to an enduring sense of stigma and pervasive self-criticism through the internalization of such prejudice.
Psychoanalytic technique does not encompass purposeful attempts to ‘convert,’ ‘repair,’ change or shift an individual’s sexual orientation, gender identity or gender expression. Such directed efforts are against fundamental principles of psychoanalytic treatment and often result in substantial psychological pain by reinforcing damaging internalized attitudes.”
(k) The American Academy of Child and Adolescent Psychiatry in 2012 published an article in its journal, Journal of the American Academy of Child and Adolescent Psychiatry, stating: “Clinicians should be aware that there is no evidence that sexual orientation can be altered through therapy, and that attempts to do so may be harmful. There is no empirical evidence adult homosexuality can be prevented if gender nonconforming children are influenced to be more gender conforming. Indeed, there is no medically valid basis for attempting to prevent homosexuality, which is not an illness. On the contrary, such efforts may encourage family rejection and undermine self-esteem, connectedness and caring, important protective factors against suicidal ideation and attempts. Given that there is no evidence that efforts to alter sexual orientation are effective, beneficial or necessary, and the possibility that they carry the risk of significant harm, such interventions are contraindicated.”
(l) The Pan American Health Organization, a regional office of the World Health Organization, issued a statement in May of 2012 and in it the organization states: “These supposed conversion therapies constitute a violation of the ethical principles of health care and violate human rights that are protected by international and regional agreements.” The organization also noted that reparative therapies “lack medical justification and represent a serious threat to the health and well-being of affected people.”
(m) Minors who experience family rejection based on their sexual orientation face especially serious health risks. In one study, lesbian, gay, and bisexual young adults who reported higher levels of family rejection during adolescence were 8.4 times more likely to report having attempted suicide, 5.9 times more likely to report high levels of depression, 3.4 times more likely to use illegal drugs, and 3.4 times more likely to report having engaged in unprotected sexual intercourse compared with peers from families that reported no or low levels of family rejection. This is documented by Caitlin Ryan et al. in their article entitled Family Rejection as a Predictor of Negative Health Outcomes in White and Latino Lesbian, Gay, and Bisexual Young Adults (2009) 123 Pediatrics 346.
(n) California has a compelling interest in protecting the physical and psychological well-being of minors, including lesbian, gay, bisexual, and transgender youth, and in protecting its minors against exposure to serious harms caused by sexual orientation change efforts.
(o) Nothing in this act is intended to prevent a minor who is 12 years of age or older from consenting to any mental health treatment or counseling services, consistent with Section 124260 of the Health and Safety Code, other than sexual orientation change efforts as defined in this act.

Read more here.

This is a critical ruling since such a preliminary injunction can only be granted based on the belief that the moving party has a substantial likelihood of prevailing on the merits.

Source: USA Today

41 thoughts on “Federal Judge Enjoins California’s Conversion Therapy Ban

  1. I wonder if this could, if it went to an appeal, set a precident for other forms of medical quackery being protected speech; that is as long as the quackery is medical advice and not physical treatment.

  2. Who makes the call….. This is over regulation at best….. I think if you look at the underlying issues….. Whose will is being treated? The parents or child…. It seems to be more of a forced choice….. I think the profession should be able to regulate itself…..

  3. Let’s get to the nitty-gritty. Homosexuality also known a sodomy has been removed from the category of sin to pathology and from pathology to biology–some believe one can be disposed genetically to this orientation.

    What if one wants to be “cured” of his biology? Not in California, eh? This is all about political correctness, the infection of the gay agenda upon our culture.

    “homosexuality expanded from the realms of sin and crime to include that of pathology. This historical shift was generally considered progressive because a sick person was less blameful than a sinner or criminal (e.g., Chauncey, 1982/1983; D’Emilio & Freedman, 1988; Duberman, Vicinus, & Chauncey, 1989).”http://psychology.ucdavis.edu/rainbow/html/facts_mental_health.html

  4. If it looks like a duck and quacks like a duck its a duck and it quacks. This bogus therapy should not be protected as free speech . It is allegedly a form of medical treatment that is being paid for and may be harmfu and is being “practiced” on a child. It seems more like child abuse than free speech to me. If an adult wants to engage in this exercise that is one thing but children should be protected from quackery.

  5. I find this a close question. On one hand, if the medical community finds a practice to be clearly harmful and unsupported, it would seem appropriate to bar. However, such questions are usually left to the governing medical or professional association rather than legislated in this fashion. There are also serious questions on the scope of the language of the law.

    On close questions the facts need to be fully developed.

    In some cases the therapists could be doing it based on their religious beliefs.

    That might tip it the other way in such cases.

  6. John A. March says, ” the infection of the gay agenda upon our culture..”

    The only infection here are in the brain cells used to formulate this hateful tripe. You are afraid of small minority of your fellow Americans for reasons which cast suspicions on your own orientation. Grown adult men do not fixate on such things.

    Perhaps if we moderated our words, and stopped calling perfect strangers “sinners” and such, the targets of these baseless but very hurtful slurs might just have a wee better outlook on life, and make choices more acceptable to His Majesty John A. March, who owns the homophobia here.

  7. I will attempt some cross thread wit here based on Dredds comment about the work signs.

    Conversion therapy on “Homos Not Working” :o)

    I think the RCC and many of its offshoots has an extensive record on conversion therapy. It goes like this.

    If you’re a GLBT person you’re going to burn in hell for eternity.
    I suggest the Medical profession study the efficacy of the churches form of conversion therapy, and see how well that has worked over the years.

  8. Blouise,

    I’m going to have to go with the Prof on this one and say it’s a close call. His logic and legal reasoning are rock solid, especially given the language of the statute and I find his observation about the field of medicine – as an applied science and somewhat an art – needing to self-regulate as a matter of necessity to be valid. Through out history, accepted medical practices have changed as the dictates of science made those changes both prudent and necessary but especially when you are dealing with a holistic therapeutic process (soft(er) science) and not something like drug toxicity (hard science). The legislature – in the broadest use of the word – have proven time and again that they simply don’t have the medical expertise to be making such decisions. Medicine is about if not the only arena where allowing a certain degree of autonomy in regulation makes sense.

    In some ways, it it analogous to the issue of banning abortions. Both involve medical treatments. Both involve a Constitutional right (free speech and self-determination vs. self-determination). Both are emotionally charged because of religious considerations. Because they are both forms of the practice of medicine though, the Hippocratic Oath should be factored in to the equation. What does the least harm to the patient? In the abortion debate, the problem is that some zealots think a foetus is a person and the primary patient when it is actually the mother. In this issue, the primary patient is the person being “treated” for their differing gender identity/sexual proclivity.

    In both cases, you have people opposing what science tells us for religious reasons but that doesn’t figure in with adult patients as the Establishment Clause prevents the governmentally forced practices of religion upon some one. However, the question becomes trickier when you are dealing with a minor and the parent has the right to bring up their child in any religious tradition of their choosing.

    This situation presents not only a close call, but a stickier problem with the 1st Amendment than appears on the surface.

  9. I agree with Gene on this matter. On the other hand, as several have pointed out in the Arlington National Cemetery thread, private organizations are not necessarily bound by the First Amendment.

    What many do not know, is that professional licensing organizations typically incorporate the Code of Ethics of that profession into the licensing statute by reference. If a practice is deemed to be unethical by a professional organization, one could lose their license to practice. Happens all the time. I know that both the American Psychiatric Association and the American Psychological Association have determined that this kind of “therapy” not only does not work, it can harm the patient. It is unethical and unprofessional practice.

  10. If this were a ban on anyone and everyone making “sexual orientation change efforts,” then I think it’d pretty clearly be unconstitutional as it would ban pure speech criticizing homosexuality or trying to persuade a minor not to change behaviors or feelings. However, it’s limited to mental health providers and the state regulating the practice of medicine usually seems legit to me. I guess I tenatively come down on the side of the court and, as long as were talking about proscribing speech only, it probably should be unconstitutional. I may reconsider after further thought.

  11. Is there not a law regulating quackery? Who defines that? How are the borders established? How is it enforced?

    This, according to the extensive references, is quackery, as it is not positive in effect but can be seriously negative.

    Why then is it allowed to be practiced? How do these practitioners qualify, if any do qualify, to establish a business and set up a sign offering their services?

    Free speech? Then WallStreetspeak is free speech. Fraud etc verbally and written is free speech. But no one defends them in these terms.

    I am surprised that the case went anywhere with the courts.

    Can Bernie Madoff claim “free speech” as a defense.

    Slander is not free speech. Nor is inciting suicide, depression, etc. free speech.

    Call, close call. What a laugh, with all due respect. Splitting hairs, when on paper all the associations including school counselors agree that the xyz of attraction is OK, and no business of anyone except to support the struggle for recognition.

    I ain’t gay, but I sure do admire them. What a miserable uphill fight.

  12. As those at the Lindsey Stone thread have noticed, I support free speech.
    But using free speech to give sexual orientation therapy to minors is a crime, pure and simple.

    Flipping the bird at a sign or even a grave as a symbol of useless wars can be defended on constitutional grounds. Dying for your nation is fine, dying for a lying administration and the MIC is not fine.

    Immolating yourself wrapped in orange robes on the Congress steps is also free speech. Let’s hope other means will be used more frequently for the good of the 99 percent.

    If we lose freedom of speech because we fear retribution, public or private, as most do nowadays, then we are a nation of quiet sheep.

    Do I hear a BAAAA?

  13. I also agree with Gene on this issue. What the legislature did was impose a form of prior restraint on speech. The most practical approach is through the common law remedy for malpractice. A few substantial jury verdicts will go a long way in eliminating this sort of quackery.

  14. MA,

    Then you feel that letting civil suits (for those who survive) and the policing through licensing restrictions by the professional associations is adequate to the task?

    What then are we to do with those who persist, where folks are not inclined to sue.

    What then are we to do with those who are “practicing” outside the purview of the professional organizations.

    What are we to do with those who regard this as a form of religiously based exorcism?

    No disrespect meant. Just asking for suggestions when perhaps civit suits aren’t enough.

  15. “….the infection of the gay agenda upon our culture…”

    That is a disgusting and incredibly stupid comment. The only agenda of the gay people I know includes working their jobs, paying their mortgage, raising their kids, having love and companionship and for some getting and staying married.. That’s the gay agenda.

  16. rcampbell,

    You know you have to be fishing near the bottom of the barrel for one to make a statement like that….but the March to a different drummer….

    How’s your Dad doing?

  17. Gene and Mike A,

    Just trying to get a handle on this … subsequent-punishment-prior-restraint dichotomy thing.

    Our earlier discussions (Gene, I & Tony C) on Free Speech had led me to begin a layperson’s study of the First Amendment (and its incorporation into the Fourteenth) and I am now up to and almost through Near v. Minnesota, having started way back with The Licensing Act of 1662.

    So this temporary injunction ruling seemed to smack of concern over prior restraint but … I wasn’t certain I was looking at it correctly.

    Thank you, gentlemen. I’m back to the books … figuratively speaking.

  18. I’m recruiting for west coast snake oil salesmen. Apparently fraudulent, worthless treatment is now protected free speech in Judge Shubb’s court.

  19. Mespo,

    You have the cream of the crop….. Or at least the cream of something to get you started on this…..sales pitch…..

  20. The right of privacy is more relevant than the right of free speech. The Ninth Amendment does not get much discussion on this blog. Time to belly up to the Constitutional Bar. JT: inform us as to the history of the Ninth Amendment. Scholars chimne in.

  21. If some profession chooses on their own volition to name themselve: “psychotherapists” one must question the choice of the word “psycho”. Yes, we think of people who are psycho as crazy. So, is the therapist crazy or is the therapist treating crazy people. I would venture the former. Why would the state “license” people to be crazy? Did Jack the Ripper have a license in California? Inquiring minds want to know.

  22. RE:

    John A. March 1, December 4, 2012 at 9:35 am

    Let’s get to the nitty-gritty


    What if your “nitty” is my “gritty”, and your “nitty” is antithetical to my necessary and sufficient “gritty” and my life is based on some variation on the theme of true grit?

    I am, and long have been, a societally open and affirmming member of the LGBTTTQQ, or genderqueer, segment of the species homo sapiens sapiens.

    In a manner not totally unlike my dad and his dad, I am a member of the ordained clergy, and also, in a manner not totally unlike my dad (the late Rev. Emerson W. Harris), I am trained and educated as a scientist who does pastoral counseling with people whose lives have been met with difficulties and various forms of neurological trauma.

    Unlike my dad or his dad, who also did pastoral counseling, I completed a research doctorate at a “major research university” (The University of Illinois at Chicago). Unlike my dad or his dad, I became a state-licensed professional whose pastoral counseling work is done in accord with the National Society of Professional Engineers, of which I am a member.

    The pastoral counseling approach of my work is predominantly psychoanalytic and psychosynthetic, as analysis and synthesis are the core of useful engineering work. My methodology is heavily oriented along the ways of the object-relations theory of Fairbairn, Klein, Guntrip, Seinfeld, and many other analysts, and is profoundly eclectic because I find useful techniques scattered throughout the human effort to make viable sense of what it is to be human in terms of both conditions and processes.

    Engineers are not accorded privileged communication, pastoral counselors are; I cannot safely work with people doing object-relations psychoanalytic work purely as an engineer because I cannot legally protect people from societal abuses if I cannot communicate with them within the safety of pastoral privilege.

    The name of something cannot be the something named, so I understand from what have been named the laws of thought, including the law of identity and the law of non-contradiction, to cite two such laws.

    In my work, a person plausibly may be born as though biologically homosexual because of independent assortment of genotypic and phenotypic traits; a person may, methinks, have two X chromosomes and may have pheromone receptors which lead the person to find only a person also having two X chromosomes to activate pheromone receptors in such a way as to lead properly to a pheromone-receptor-compatible marriage.

    LGBTTTQQ? Lesbian, gay, bisexual, transgendered, transsexual, two-spirit, queer, and questioning. To me, the laundry list of LGBTTTQQ has a useful synonym, which is, “normal.”

    So, in my work, I have come upon people who identified as homosexual as a form of reaction-formation to childhood sexual abuse, and resolving the sexual abuse resulted in the person shedding homesexual orientation. Also, in my work, I have come upon people who identified as heterosexual as a form of reaction-formation to childhood sexual abuse, and resolving the sexual abuse resulted in the person shedding heterosexual orientation.

    In my work resolving child abuse, no matter what the form of the abuse, has invariably resulted in the resolving of the abuse giving to the person a notably improved sense of quality of life.

    In my work I do not treat people as categories; I only treat people as inescapably valid individual humans who, for whatever reason, may have been met with one or another form of injury, the healing of which incessantly has remarkable merit.

    Denigrating another person as though doing that will enhance one’s actual quality of life is commonly, in my work, prima facie evidence of one or another likely form of injury, most often child abuse, not yet healed.

  23. It’s all pretty much a non sense question. Why does the court have any say about what a family choses to teach their children. Gay people are gay people, there’s no argument, I have gay friends, but obviously there is a demand for this service in the private sector, and as long as these so called therapists aren’t physically or mentally hurting these people then it’s not any govt’s business what mistakes people chose to make with their money. Whether you agree with it or not there will always be people who make poor choices over race, sexuality and the like, simply outlawing their choices only creates a black market which is worse because then there will be no scrutiny. Govt mandated morality is a poor avenue to affect social changes in attitudes and beliefs.

  24. Well in cases where there is harm, I would completely agree. I’m sure there are so called therapists however that only seek to teach the values the parents want to instill. There I dont see a problem, while likely confusing to a child, a families beliefs are the bedrock of a family, and we should encourage tolerance not trying to change individuals that way.

  25. “I also agree with Gene on this issue. What the legislature did was impose a form of prior restraint on speech. The most practical approach is through the common law remedy for malpractice. A few substantial jury verdicts will go a long way in eliminating this sort of quackery.”

    I might be wrong, but I believe that if the law is unconstitutional, then there’d be a first amendment defense to any malpractice cause of action. In other words, if it’s unconstitutional for the state to criminally outlaw a particular action because it’s a violation of the first amendment, then it is (and should) also be protected from a civil penalty which can only be imposed through the government.

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