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 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.

  2. 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.

  3. 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.

  4. 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.

  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. 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.

  7. 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

  8. 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…..

  9. 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.

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