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Topics In the News
 
Ninth Circuit Denies Review of California Reparative Therapy Law
Posted by: Claude J. Summers on 01/30/14
Last updated on: 01/31/14
 
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Ryan Kendall tells Anderson Cooper why he testified against reparative therapy in the original trial.

On January 29, 2014, the Ninth Circuit Court of Appeals decisively rejected a request for an en banc hearing to reconsider its August 29, 2013 ruling that upheld the constitutionality of California's 2012 law banning reparative therapy for minors. Of the 27 judges who sit on the Court, only 3 voted to reconsider the ruling. The denial of Liberty Counsel's request for an en banc hearing means that only the U.S. Supreme Court can now question the law's validity.

On August 29, 2013, in a case known as Pickup v. Brown, a three-judge panel unanimously upheld California's law that bars the practice of sexual orientation conversion therapy on minors by licensed mental health professionals. The panel concluded that the law "does not violate the free speech rights of practitioners or minor patients, is neither vague nor overbroad, and does not violate parents' fundamental rights."

Following the ruling, Liberty Counsel, the right-wing legal group that challenged the law on behalf of practitioners of reparative therapy, filed a motion requesting an en banc hearing of the Court. To grant an en banc hearing, in which at least ten members of the Court would reconsider the decision, requires a majority of the 27 active members of the Court. Only three members of the Court voted in favor of the en banc hearing, hence it was denied.

The three members of the Court who voted in favor of an en banc hearing--Judges O'Scannlain, Bea, and Ikuta--issued a dissent contending that the ruling undercut the First Amendment by labeling professional speech as "conduct" unprotected by the Constitution.

The law at issue, which Governor Brown signed on September 29, 2012, declares that "being lesbian, gay, or bisexual is not a disease, disorder, illness, deficiency, or shortcoming" that requires curing. Under the law, "any practices" that seek to change a minor's sexual orientation are deemed unprofessional conduct subject to discipline.

In signing the legislation, Governor Brown declared "This bill bans non-scientific 'therapies' that have driven young people to depression and suicide. These practices have no basis in science or medicine and they will now be relegated to the dustbin of quackery."

When the case reached the Ninth Circuit, the issue was a technical one as to whether a district judge's preliminary injunction barring enforcement of the law against three named plaintiffs would stay in place, but in its opinion the Court went beyond the technical issue to consider the merits of the arguments themselves. The Court declared unambiguously that the legislation is fully constitutional.

The summary, published with the opinion of the Court, says that the panel found that the law does not violate the free speech rights of practitioners or minor patients, is neither vague nor overbroad, and does not violate parents' fundamental rights. 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 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.

The panel further held that the law does not implicate the right to freedom of association because freedom of association does not encompass the therapist-client relationship; that the law was neither void for vagueness nor overbroad because the text of SB 1172 was clear to a reasonable person and any incidental effect that the ban had on speech was small in comparison to its legitimate sweep; and the ban does not infringe on the fundamental rights of parents because parents do not have the right to choose a specific type of provider for a specific medical or mental health treatment that the state has reasonably deemed harmful.

The complete opinion may be found here.

A similar New Jersey law, which was adopted in August 2013, was upheld on November 8, 2013, when U.S. District Judge Freda Wolfson dismissed a lawsuit challenging its constitutionality, Judge Wolfson rejected the arguments that the law infringes free speech or the exercise of religion or the rights of minors to self-determination or the right of parents to direct the upbringing of their children.

The reparative therapy movement is rooted in the work of 1960s psychologists such as Irving Bieber and Charles Socarides, who claimed that homosexuality was both pathological and susceptible to change. When their position was repudiated by the 1973 decision of the American Psychiatric Association to remove homosexuality from the category of "illness," they launched a counter-offensive against the views of the psychological and psychiatric establishment.

In 1992, the National Association for Research and Therapy of Homosexuality (NARTH) was established. Led by Joseph Nicolosi and Charles Socarides, and funded largely by right-wing religious and political organizations, NARTH is self-described as "a non-profit, educational organization dedicated to affirming a complementary, male-female model of gender and sexuality." It essentially espouses the view of homosexuality that was dominant in the 1950s and 1960s: that a homosexual "preference" results from a developmental problem, especially a child's failure to identify properly with adult figures of the same gender.

Sexual orientation change efforts pose serious health risks, including depression, shame, decreased self-esteem, social withdrawal, substance abuse, self-harm, and suicide. For minors, who are often subjected to these practices at the insistence of misled parents who either do not know or do not believe that the practice is harmful, the risks of long-term mental and physical health consequences are particularly severe.

In June 2011, Ryan Kendall, a young man who subsequently testified in favor of the bill banning reparative therapy for minors, spoke with Anderson Cooper about his experience with reparative therapy.

 
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