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Boards may enforce ban on sexual conversion therapy, federal court rules

The government has some leeway to regulate professional conduct in delivery of psychotherapy, the U.S. Court of Appeals for the Ninth Circuit said in a January 29 decision. The ruling denied an injunction to plaintiffs who sought to overturn a 2012 California statute that prohibits licensed therapists from practicing sexual orientation change therapy (SOCE), a method aimed at repressing same-sex sexual desire, on minor patients. The court found that the plaintiffs were unlikely to win their case (Pickup v. Brown).

The legislative prohibition was a reaction to changing views of sexuality in American society. Homosexuality has not been listed in the Diagnostic and Statistical Manual of Mental Disorders since 1973, and the prohibition statute, passed in 2012 by the California legislature, was prompted by assertions from many mental health associations that the practice was ineffective and risked harming patients.

At least two different suits were filed, with the two that formed the basis of the Ninth Circuit’s opinion meeting with different levels of success. In one of the cases, Welch v. Brown, a federal district court judge granted a preliminary injunction to the plaintiffs, ruling that the law likely violated constitutional prohibitions on the restriction of speech.

In the other case, Pickup v. Brown, a federal judge denied the group’s request for an injunction, ruling that they were unlikely to prevail on any of their constitutional claims. Both cases were appealed to the Ninth Circuit, which issued its ruling in favor of the state.

A group of practitioners, advocacy organizations, minor patients, and their parents brought suit seeking to have the new law declared unconstitutional. The methods used by practitioners of sexual change therapy involved in the suit include “reframing” of a subject’s desires, redirection of their thoughts, and hypnosis. The challenged bill was intended to prohibit both these and more assertive and physical methods of conversion, such as inducing nausea or pain at the onset of desire.

Citing precedent, the appeals court judges elaborated three core principles that guide constitutional speech claims in the context of mental health treatment: “(1) [D]octor-patient communications about medical treatment receive substantial First Amendment protection, but the government has more leeway to regulate the conduct necessary to administering treatment itself; (2) psychotherapists are not entitled to special First Amendment protection merely because the mechanism used to deliver mental health treatment is the spoken word; and (3) nevertheless, communication that occurs during psychotherapy does receive some constitutional protection, but it is not immune from regulation.”

The bill did not regulate speech, the court ruled, as it did not prevent the discussion of the therapy with patients or the public, but only the implementation of particular treatment, which the court deemed “professional conduct.” According to the statute, “[t]he only thing that a licensed professional cannot do,” wrote Judge Susan Graber for the majority, “is avoid discipline for practicing SOCE on a minor patient.”

The court also ruled that the law was not unreasonable and was not subject to being overturned. “The record demonstrates that the legislature acted rationally when it decided to protect the well-being of minors by prohibiting mental health providers from using SOCE on persons under 18,” Judge Graber wrote.

He noted that the state had relied on the opinion of mental health professional organizations “which concluded that SOCE has not been demonstrated to be effective and that there have been anecdotal reports of harm, including depression, suicidal thoughts or actions, and substance abuse.”

“Although the legislature also had before it some evidence that SOCE is safe and effective,” Graber concluded, “the overwhelming consensus was that SOCE was harmful and ineffective.”

The plaintiffs also contended that the law violated constitutional protections of the freedom of association, but the court noted that therapist-client relationships are not the kind of association protected by the Constitution.

In response to the plaintiffs’ claim that the bill infringed on the rights of parents to make decisions regarding their children’s upbringing, Graber wrote, “the fundamental rights of parents do not include the right to choose a specific type of provider for a specific medical or mental health treatment that the state has reasonably deemed harmful.”