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Redefining Persecution in the US: The End of Conversion Therapy?

JURIST Guest Columnist Gabriel Rodriguez-Rico, American University Washington College of Law Class of 2012, discusses the ramifications of conversion therapy on LGBT youth and examines the recent passage of legislation banning the practice in California...

On September 29, California became the first state in the US to ban professional psychological conversion therapy on minors. The bill was previously approved by the state's legislature in August. Although the law leaves room for counseling and other religious strategies, it is considered the first strong response to the recent increase in suicides among lesbian, gay, bisexual and transgender (LGBT) teenagers, which has caused outrage in the US. Although it is difficult to determine whether there is a new national crisis among the youth population — or if the media recently began reporting on what has occurred for a long time — it has become evident that efforts to protect the LGBT population, particularly the youth segment thereof, have fallen short.

Most of the current legal protections for LGBT individuals centers on anti-bullying provisions and protection for homeless LGBT youth [PDF] who represent between 20 and 40 percent of the homeless youth population — despite the fact that LGBT individuals make up only three to five percent of the total population. Nevertheless, legislators remain shy about tackling issues that arise within the families of the victims, deeming them to be private issues — even when it is well-documented that frequently there is a high level of tolerance, and even collusion, in practices that seek to impose heterosexuality.

The American Psychological Association (APA) defines conversion therapy as the "counseling and psychotherapy to attempt to eliminate individuals' sexual desires for members of their own sex." Despite the fact that homosexuality is no longer considered a mental illness, conversion therapy remains active amongst professionals closely linked to religious organizations. Results show a low success rate, close to zero percent, while the few favorable cases that have been documented are put in doubt by experts who have concluded that the conversion of sexual orientation is more related to religious suppression than actual change.

The current legal framework grants parents and custodians the authority to give consent for minors to take part in these therapies. Thus, conversion therapy remains as a psychological alternative that does not take into consideration the consent of the minor. The combination of the religious or cultural beliefs of parents, custodians and psychologists who are willing to practice conversion therapy has led to the systematic persecution of LGBT youth within their own families under the guise of custodial rights. The results have proven devastating for minors subjected to such therapy, frequently causing depression and even suicidal tendencies. Thus, California's ban seeks to limit the current prerogative of parents and custodians in order to halt the practice of subjecting minors to conversion therapy and, as a result, avoid such negative consequences. In addition, besides the fact that a minor is not legally capable of making such decisions, there is a high risk of falsely obtained or wrongfully influenced consent. Therefore, there is a strong basis for deeming that the decision to undergo conversion therapy should be out of reach, not only for custodians and parents, but also for the minors themselves.

In addition, California's ban reaches beyond the mere issue of consent. It puts an end to the current contradiction that the US Court of Appeals for the Ninth Circuit exposed in Pitcherskaia v. INS. In this decision, the Ninth Circuit established that Alla Pitcherskaia, a Russian citizen, successfully demonstrated that the risk of suffering conversion therapy upon her return to her country fell within the definition of "persecution." The applied definition indicated that persecution was "the infliction of harm or suffering by ... persons a government is unwilling or unable to control, to overcome a characteristic of the victim." Although it was the government that persecuted Pitcherskaia, the Ninth Circuit's definition is broad enough to apply to cases where such persecution is committed by civilians — including family members and custodians. In the case of conversion therapy, persecution occurs when the government fails to provide protection for minors against the forced treatment authorized by their parents or custodians.

It could be argued that granting consent for conversion therapy is among the parental rights recognized by the US Constitution. Nevertheless, there is no prerogative to waive fundamental rights when acting in representation of another. In this case, the right to refuse treatment which has been recognized by the US Supreme Court in O'Connor v. Donaldson. Moreover, the Ninth Circuit in Pitcherskaia clarified the meaning and extent of persecution, defining it as "the infliction of suffering or harm on those who differ in a way regarded as offensive." The court went on to state that "[t]his definition of persecution is objective, in that it turns not on the subjective intent of the persecutor, but on what a reasonable person would deem to be 'offensive.'"

The most common justifications for conversation therapy are religious beliefs and the well-being of the minor. Nevertheless, as the Ninth Circuit indicated in Pitcherskaia, there is no specific mens rea "to harm or to punish as an element of persecution." The court went so far as to exemplify through the Spanish Inquisition the manner in which persecutors can allege their intent to help or save the victim while still inflicting suffering. This demonstrates that the arguments based on well-being — and even religion — will not be enough to justify the infliction of conversion therapy against the interests or wishes of a minor. In addition, it is the minor's perspective, not the reasoning of the parent or custodian, that has to be taken into consideration when determining whether there is actual persecution.

Although it can be argued that protection against persecution should be limited to the immigration or refugee realm, we must take into consideration that such policy is determined on a humanitarian basis [PDF]. Such protections seek to prevent the violation of human rights that the US holds close to its core values. In this case, persecution is being forced to belong to a specific social group through the application of forced treatment.

Conversion therapy must not be defined as a private issue. Sexual orientation and gender identity go beyond the scope of decisions that a custodian or parent can make for a child. Moreover, the indifference with which this subject has been treated has created devastating consequences for minors, while strengthening the stigma against sexual minorities and the persecution they can be subjected to within their own families. The example of California's ban must be followed by other states until the entire country speaks with the same voice. Otherwise, current legal loopholes will perpetuate — wherein a minor in Pitcherskaia's position could successfully obtain asylum status in the US only to be forced by the "consent" of her guardian or parent to endure the same persecution she escaped. Only, this time, that persecution will take place in America.

Gabriel Rodriguez-Rico attended American University Washington College of Law for his LLM. From 2008 to 2011. He worked for Xinhua News Agency. He currently interns at the Sanctions Committee of the Inter-American Development Bank.

Suggested citation: Gabriel Rodriguez-Rico, Redefining Persecution in the US: The End of Conversion Therapy?, JURIST - Dateline, Oct. 19, 2012, http://jurist.org/dateline/2012/10/gabriel-rodriguez-rico-coversion-therapy.php.

This article was prepared for publication by Elizabeth Hand, an associate editor for JURIST's student commentary service. Please direct any questions or comments to her at studentcommentary@jurist.org

Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.

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