Consider a medical treatment for minors that caused children to experience depression, guilt, self-hatred and, in severe cases, commit suicide. It would be unconscionable for government-licensed therapists to carry out this form of treatment. Yet, this is exactly what US governments have been doing by permitting "reparative therapy," also known as sexual orientation change efforts (SOCE). This "therapy" has repeatedly been shown to not only be ineffective, but dangerous in that it often causes severe mental trauma and even death for some children.
Last year, the California State Legislature exercised its power to protect public health and passed Senate Bill 1172 (SB 1172) [PDF], the first law in the nation to ban SOCE for minors. Case law and the plain language of the statute show that this law is constitutional.
The Dangerous Quackery of SOCE
There are many words to describe SOCE, but perhaps the best two are these: "dangerous quackery." SOCE therapies have included castration, electrical shocks, nausea-inducing drugs and bogus psychotherapeutic treatments, such as promoting heterosexual intercourse to gay children, or telling them that God cries because they are gay.
At least ten major professional health organizations have rejected reparative therapy and warned about its dangers. The American Psychological Association (APA) conducted a systematic review of peer-reviewed journal literature on SOCE and issued a report [PDF] in 2009 stating that "sexual orientation change efforts can pose critical health risks to lesbian, gay, and bisexual people, including confusion, depression, guilt, helplessness ... suicidality ... increased self-hatred ... sexual dysfunction, high-risk sexual behaviors ... and a sense of having wasted time and resources."
The APA concluded: "The potential risks of reparative therapy are great, including depression, anxiety and self-destructive behavior." In May 2012, Pan American Health Organization Director Dr. Mirta Roses Periago stated: "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." During the signing of SB 1172, California Governor Jerry Brown asserted that "[t]hese practices have no basis in science or medicine and they will now be relegated to the dustbin of quackery."
The First Amendment Does Not Shield Therapists From Public Health Regulations
Upon SB 1172's enactment, two groups of plaintiffs filed lawsuits to enjoin the law. Their primary argument is that reparative therapy includes speech and therefore the First Amendment to the US Constitution prevents such regulation. The argument is specious because virtually all medical treatment involves speech. When a doctor calls in a prescription or tells a patient his diagnosis, it is done through speech. Yet, a doctor is not shielded from medical malpractice if he calls in the wrong prescription or misdiagnoses one's cancer simply because the doctor conveyed the information verbally.
If the plaintiffs were correct, then the state could never regulate the medical profession because all doctors engage in some sort of speech when they practice medicine. Recognizing this absurdity, in Planned Parenthood v. Casey, the US Supreme Court stated that, when speech is "part of the practice of medicine, [it is] subject to reasonable licensing and regulation by the State."
With regard to therapists specifically, in National Association for the Advancement of Psychoanalysis (NAAP) vs. California Board of Psychology, the US Court of Appeals for the Ninth Circuit held that therapists are not entitled to special First Amendment protection:
[T]he key component of psychoanalysis is the treatment of emotional suffering and depression, not speech ... That psychoanalysts employ speech to treat their clients does not entitle them, or their profession, to special First Amendment protection.In the case at hand, the entire house of medicine has concluded that a person's sexual orientation is not a medical disorder or disease that requires a cure. Homosexuality, for example, is not listed in the Diagnostic and Statistical Manual of Mental Disorders (DSM). No ethical therapist would ever attempt to "cure" something that is not a mental disorder. Reparative therapists have been misdiagnosing their patients and committing medical malpractice on a massive scale. Recently, six plaintiffs in New Jersey sued their reparative therapists for fraud and other torts.
Neither the Supreme Court nor the Ninth Circuit have ever interpreted the First Amendment as shielding licensed therapists from medical malpractice and medical licensing laws because their practice of medicine includes talking. For this same reason, the First Amendment does not preclude SB 1172 a public health law from applying to therapists.
Judge Mueller Upholds Constitutionality of SB 1172
Relying in part on NAAP and the plain language of SB 1172, District Judge Kimberly Mueller found that the First Amendment does not apply to SOCE treatment. The language of SB 1172 does not regulate speech. Rather, it regulates medical practices, and SB 1172 defines SOCE as "practices" by mental health providers "that seek to change an individual's sexual orientation." Mueller found that "plaintiff therapists have not shown they are likely to succeed in bearing their burden of showing that the First Amendment applies to SOCE treatment; they have not shown that the treatment, the end product of which is a change of behavior, is expressive conduct entitled to First Amendment protection."
Judge Shubb's Ruling Leads to Absurd Situations, Ignores the Plain Language of SB 1172
A second federal district judge, however, issued an injunction against SB 1172, but applied it only to the three plaintiffs who brought the lawsuit. District Judge William Shubb believed that the First Amendment applied to SOCE therapy and held that SB 1172 failed to meet a strict scrutiny test since it was a content and viewpoint based regulation on speech. Shubb's ruling unfortunately could lead to all sorts of dangerous situations. Would therapists now be immune from medical malpractice claims because their "speech" is protected by the First Amendment? Could therapists now say whatever they want to a patient regardless of how unethical or dangerous it is?
Consider the following example: suppose a group of therapists believed in the assisted suicide movement and recommended that for some patients experiencing immense mental suffering suicide would be the best alternative. These therapists then embark on a course of treatment seeking to cause their patients to commit suicide. Under Shubb's ruling, California would not be able to pass a law stopping this suicidal medical treatment because it would be a content and viewpoint based regulation on the therapists' speech.
Another problem with Shubb's ruling is that it ignores the plain language of the statute. As explained above, SB 1172 does not regulate speech, it regulates mental health practices. SB 1172 only applies to "practices" carried out by a "mental health provider." Under SB 1172, a priest, a doctor who does not specialize in mental health or even a layperson could still engage in SOCE. If the intent of SB 1172 was to somehow prohibit speech, it would be a curious way to do so since the 99 percent of the citizenry who are not licensed therapists can still engage in SOCE under SB 1172.
The line that SB 1172 draws is the same reasonable distinction that all of us understand: licensed professionals are held to different ethical standards than the rest of us. For example, suppose someone showed skin discoloration on his hand to his lawyer friend, who responded: "Don't worry, it's just an age spot." Unfortunately, the discoloration turned out to be cancer. This unfortunate person could not sue their friend for medical malpractice. However, if that same person went to a dermatologist and the physician uttered the exact same phrase, the patient could indeed sue for medical malpractice. The primary difference between the lawyer and the doctor in this situation is a medical license, which is the same distinction SB 1172 draws. That is why the remedy SB 1172 provides is based entirely on licensing. Violations of SB 1172 "subject a mental health provider to discipline by the licensing entity for that mental health provider."
Our laws also make a similar distinction in other professions. As a civilian, I can say: "The president is a traitor." However, if I utter that exact same statement while on military reserve duty I can be court-martialed. Like mental health professionals, military members are held to a different, higher standard. The First Amendment protects civilians who criticize their president, but not military members, because the status of the speaker matters. The same is true for the mental health profession it matters if the person giving a diagnosis is a licensed therapist as opposed to a layperson, even if the exact same statement is made. The same goes for SB 1172: it matters if the person giving the reparative therapy is a mental health provider or, alternatively, a layperson.
Shubb's ruling also disregards the critical fact that, under the plain language of the statute, a therapist can still say whatever the therapist wants. A therapist can say that homosexuality is evil, or that God cries because a child is gay, or that he believes homosexuality can be cured. What SB 1172 guards against is a therapist subsequently embarking on a course of treatment to "cure" the patient of homosexuality.
Moreover, SB 1172 allows therapists not licensed in California to avoid the statute altogether. One of the primary points of SB 1172 is that California state government does not want its imprimatur on a purported therapy that is dangerous and has been overwhelmingly discredited. California certainly should be able to legislate that its California-licensed reparative therapists need to stop subjecting children to harmful practices that have been rejected by every mainstream professional medical organization.
The Ninth Circuit will hear the appeals from both Judge Mueller's Order and Judge Shubb's Order later this year. The case law, plain language of the statute and common sense dictate that SB 1172 should be upheld.
Ted Lieu is a California State Senator from Torrance, Los Angeles County, and is the author of SB 1172, the first bill in the nation to ban reparative efforts for minors. He is also a Lieutenant Colonel in the United States Air Force Reserves.
Suggested citation: Ted Lieu, California Becomes First State to Crack Down on 'Gay Cures' for Minors, JURIST - Hotline, Feb. 1, 2013, http://jurist.org/hotline/2013/02/ted-lieu-ca-reparative-therapy.php
This article was prepared for publication by Michael Muha, an assistant editor with JURIST's professional commentary service. Please direct any questions or comments to him/her at firstname.lastname@example.org