A federal appeals court has blocked a ban on so-called conversion therapy for gay minors in California. Under the law, therapists who practiced such therapy would be guilty of unprofessional conduct when using the techniques on minors, and would face punishment from the state’s licensing boards. The ban was passed by the California legislature earlier this year and signed into law by Governor Jerry Brown, and was supposed to go into effect on Jan. 1 of 2013.
Counselors who practice what is known as “conversion” or “reparative” therapy filed a lawsuit in a district court claiming that the law violates freedom of speech, however that court ruled against the plaintiffs. A different group of therapists filed suit in another court, which ruled that the law does, in fact, violate their First Amendment rights.
The case has now gone to the 9th Circuit Court of Appeals, where an injunction was granted that blocks the law from taking effect until the court can hear arguments on the constitutionality of the ban.
According to the American Psychological Association, there is no evidence that such conversion therapy is effective at making gay people straight, or that it’s a safe type of therapy to engage in. In fact, they consider such therapies to be unsafe because they reinforce stereotypes and the entrenched negative associations people still have when it comes to gays. Therapies that do work mainly focus on helping a person deal with those associations and stereotypes, and helping them to learn how to have a happy and fulfilling life in spite of societal pressures.
A page on the Human Rights Campaign’s website lists 10 separate medical entities that oppose conversion therapy, believing it be both ineffective and harmful to mental health. The American Pediatrics Association says that conversion therapy can strengthen already-existing feelings of anxiety and guilt about sexual orientation. They suggest that therapy only be used to help children and adolescents with non-heterosexual orientations deal with the anxiety they already feel, or to help them identify their sexual orientation when they’re uncertain and then learn how to have a positive attitude.
The American Counseling Association says that they support putting out accurate reports and information about sexual orientation, and does not support or agree with classifying people as mentally ill or not, based simply on their sexual orientation.
The American Psychoanalytic Association says that psychoanalysis involves understanding, not fixing or changing behavior. They further state that efforts to change someone’s sexual orientation go against the fundamental principles of psychoanalysis.
The issue at hand in California, however, is not the dangers of conversion therapy, but whether the ban on this kind of therapy is a violation of therapists’ and families’First Amendment rights. A different panel of judges from those who blocked the law’s implementation will decide on the constitutionality of the law.
The difference is in whether therapy is to be considered speech or conduct, according to David Hudson, Jr., in an article posted on Dec. 7. He says that, if therapy is considered speech, then yes, banning conversion therapy is a violation of First Amendment rights. However, if therapy is considered conduct, then the plaintiffs will have a difficult time demonstrating that such a law violates their constitutional rights.
U.S. District Judge Kimberly Mueller’s decision says that therapy is not expressive conduct and should not fall under the protection of the First Amendment, the way that wearing armbands or even burning a flag is. She cited two specific cases—Texas vs. Johnson (1989) which upheld burning flags as political protest and therefore constitutionally protected, and Tinker vs. Des Moines Independent Community School District (1969), which decided that students wearing black armbands in protest of governmental policy was a protected form of speech—as examples of expressive conduct, and that the plaintiffs had not shown that their methods of therapy are also expressive conduct.
On the other hand, U.S. District Judge William B. Shubb, ruling on the other lawsuit against the ban, ruled that regulating certain conduct does indeed have an effect on freedom of speech, and therefore, such therapy is to be considered protected speech.