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Reparative Therapy at the Ninth Circuit
Posted by: Claude J. Summers on 04/19/13
Last updated on: 04/19/13
 
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Governor Jerry Brown.

On April 18, 2013, a three-judge panel of the Ninth Circuit Court of Appeals heard arguments as to whether a California law prohibiting "reparative therapy" for minors is constitutional. Passed by the California legislature and signed by Governor Jerry Brown on September 29, 2012, the bill, which covers only state-licensed therapists, 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.

Soon after Governor Brown signed the bill into law, it was challenged in federal court by practitioners of reparative therapy. Two district judges issued conflicting decisions. One refused to block the law after ruling that the plaintiffs were unlikely to prove that it infringes on their civil rights, while another judge said he found the First Amendment issues presented by the ban to be compelling and ordered the state to temporarily exempt from the law the three people named in the case before him.

Technically, the issue before Ninth Circuit is whether the preliminary injunction barring enforcement of the law against the named plaintiffs will stay in place. But this ruling is crucial. As Scottie Thomaston at Equality on Trial observes, "The answer to the question of whether the law attempts to regulate protected speech or whether it only regulates aspects of the medical profession will likely have a huge impact on how the case proceeds. If the Ninth Circuit believes the law attempts to regulate speech that is constitutionally protected, then courts will have to scrutinize the 'conversion therapy' ban very carefully, making it less likely the ban would be upheld in the future. But if the court decides it's simply a permitted regulation of the medical profession, it would not face a heightened level of judicial scrutiny."

The panel, consisting of Chief Judge Alex Kozinski, Judge Susan Graber, and Judge Morgan Christen, heard nearly two hours of arguments before a packed courtroom. Attorneys for the therapists said that the law violates free speech and religious rights, while Deputy Attorney General Alexandra Robert Gordon argued that reparative therapy was dangerous and unprofessional and could be regulated by the state.

Scott Graham reports in Law.com that the panel "sounded ready Wednesday to uphold a state law that bans psychotherapists from trying to change minors' sexual orientation."

The Judges seemed sympathetic to the argument that the state had the power to regulate the medical profession, particularly in the area of pediatric care. If legislators wanted to ban the use of electroshock therapy or psychoactive drugs on minors, Judge Susan Graber asked, "why can't they do that?"

Attorneys for the practitioners of reparative therapy said that the law unconstitutionally dictates what they can say during counseling sessions.

When pressed for evidence that reparative therapy is harmful, Gordon acknowledged that there have not been many scientific studies of conversion therapy on children, because conducting them would be unethical. "When they become suicidal we'll know for sure this is a harmful practice--happily, the law does not require that," she said.

Graber noted that the state does not have to prove compelling evidence of harm if it concludes that psychotherapy is not speech. Gordon agreed. "The question you'd really be asking is, is that a reasonable regulation?" she said.

Kozinski cited an amicus curiae brief from individuals who underwent conversion therapy and described the intense emotional harm they endured.

Christen challenged Pacific Justice Institute's Kevin Snider, representing practitioners of reparative therapy, to point to evidence that conversion therapy actually helps teenagers become heterosexual.

"We don't have the burden of proving that it's effective or ineffective," Snider responded.

The judges seemed inclined to rule that the state had the power to regulate psychotherapy directed at minors. Judge Kosinski made a distinction between the rights of adults to seek therapy and the power of the state to protect minors from therapies that may be harmful.

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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