California’s Ban on “Ex-Gay” Therapy Challenged on Constitutional Grounds

Its protracted and divisive struggle over the legalization of same-sex marriage notwithstanding, the state of California has taken the lead on another vital issue on the pro-equality agenda—by enacting a legislative ban on so-called “ex-gay” therapy for minors.

Effective January 1, 2013, SB 1172 will prohibit children under 18 from undergoing sexual orientation-change efforts (SOCE). Alternatively labeled “conversion therapy,” “reparative therapy,” or “sexual orientation therapy,” SOCE often comprises efforts by mental health professionals and religious leaders to “convert” people to heterosexuality by techniques including “aversive treatments, such as the application of electric shocks[…], and nausea-inducing drugs… administered simultaneously with the presentation of homoerotic stimuli, masturbatory reconditioning, visualization, social skills training, psychoanalytic therapy, and spiritual interventions, such as ‘prayer and group support and pressure.’ ”

The legislation’s sponsors allege that when applied to minors, such therapy is tantamount to “psychological child abuse,” and have received endorsement from the California Psychological Association and the California Board of Behavioral Sciences, among others.  While there is no evidence to support the conclusion that such therapy leads to or induces suicide, the fact that the therapy often fails to cause the “desired” results exacerbates a child’s internal struggles and compounds distress, thereby lowering self-esteem and possibly triggering depression.

SB 1172 defines SOCE as denoting 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.”  Psychotherapies that: (i) 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 (ii) do not seek to change sexual orientation, are categorically excluded from the purview of the legislation.

The law forbids any mental health provider from engaging in sexual orientation change efforts with a patient under 18 years of age.  Any such attempt will be deemed “unprofessional conduct” and shall subject the concerned provider to discipline by her/his licensing entity.

Predictably enough, the law has already been challenged in federal court, as an “astounding violation” of the right to free speech and religious liberty. The challengers assert that the law is tantamount to viewpoint discrimination—which tends to attract strict scrutiny under a First Amendment analysis—because “it is telling a client that he or she may not receive a specific viewpoint in counseling,” even if that viewpoint coheres with their religious or moral values. Arguments based on the judicially recognized “right to privacy” have also been raised, with the law being cast as an egregious intrusion into an intimate sphere of thought, belief and activity.

Supporters of the law appear unfazed by the lawsuits, going so far as dismissing them as “frivolous.”  It is possible that the constitutionality—or otherwise—of California’s measure does proffer some room for debate, or at least creates the opportunity for critical engagement with current First Amendment doctrine—particularly in the realm of religious freedom of minors themselves to pursue professional/medical help for dealing with feelings that they may consider repugnant to their own beliefs, and/or the right of parents to shape the upbringing of their children.  Cue toWisconsin v. Yoder 406 U.S. 205 (1972)— a stand-out decision rendered in the context of highly particularized circumstances—which held that the Amish were entitled to an exemption from a generally applicable law requiring children to attend schools up to the age of 16.  Yoder remains good law under the First Amendment’s free exercise clause even after the Supreme Court in Employment Division v. Smith, 494 U.S. 872 (1990)held that religious objectors are generally not entitled to an exemption from neutral and generally applicable laws. Yoder singled out the non-free-exercise principle involved by stipulating that “the Court’s [earlier] holding in Pierce stands as a charter of the rights of parents to direct the religious upbringing of their children.”

However, as the legislation’s sponsor (state Senator Ted Lieu) points out,  the government’s duty to protect children from abuse has unassailable historical and constitutional foundations. [See also Ginsberg v. New York, 390 U.S. 629 (1968), which recognizes the state’s interest in the general well-being of children]. It is important to highlight the law’s limited scope: it only applies to the activities of licensed therapists, and does not affect ministers or lay people (parents, friends, relatives) who counsel teens to resist same-sex attractions and desist from same-sex sexual conduct. As originally written, the bill would have also required therapists to warn adult patients of SOCE’s risks and limitations and to obtain their written consent before availing of it.  However, this provision was later dropped, amid complaints that it unduly interfered with the therapist-client relationship.

Moreover, under California law (SB 543, 2009), a minor of 12 or older can consent to mental health treatment or counseling services if, in the opinion of the attending professional person, the minor is mature enough to participate intelligently in the mental health treatment or counseling services.  However, SB 543 also contains exceptions disallowing a minor’s access to controversial or potentially harmful mental health treatments, such as electro-convulsive therapy (ECT) and psychosurgery.  The ban on SOCE can thus be justified as a legislatively crafted exception that prevents minors from consenting to certain, narrowly defined categories of mental health treatment.

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