Court upholds first ban on gay-to-straight therapy
By PAUL ELIAS
A federal appeals court sided with California on Thursday and upheld the first law in the nation banning a psychological treatment that seeks to turn gay youth straight.
In a resounding, unanimous opinion, a three-judge panel of the 9th U.S. Circuit Court of Appeals found the state law barring the so-called gay aversion therapy legal in every respect.
The judges said trying to change a minor’s sexual orientation through intense therapy appeared dangerous, and that California lawmakers properly showed that the sexual orientation change efforts were outside the scientific mainstream and have been rejected for good reason.
“One could argue that children under the age of 18 are especially vulnerable with respect to sexual identity and that their parents’ judgment may be clouded by this emotionally charged issue as well,” Judge Susan Graber wrote for the court panel.
The California Legislature cited reports, experts and anecdotes involving suicides, substance abuse and other behavior by young recipients of the therapy before members voted last year to ban it for minors.
“Efforts to change a young person’s sexual orientation pose critical health risks, including depression, shame, decreased self-esteem, social withdrawal, substance abuse, self-harm and suicide,” Lambda Legal, which defends gay rights, said in an email statement about Thursday’s ruling.
The activities of pastors and lay counselors who are unlicensed but provide such therapy through church programs are not covered by the law.
New Jersey Gov. Chris Christie has signed a similar law that would also outlaw the therapy in his state.
Liberty Counsel, a Christian legal aid group that represents support of the practice, said it will either ask a larger panel of the court to reconsider the decision or petition the U.S. Supreme Court to take up the case. Liberty Counsel is also fighting the New Jersey law.
“The minors that Liberty Counsel represents do not want to act on same-sex attractions, nor do they want to engage in such behavior,” the group said in an email statement. “They are greatly benefiting from this counseling.”
Liberty and other backers of the therapy argue that lawmakers have no conclusive, scientific proof that the therapy does harm.
When California Democratic Gov. Jerry Brown signed the law, he said the therapy was “quackery,” and sessions trying to change a minor’s sexual orientation have “no basis in science or medicine.”
The court ruling on Thursday resolved two conflicting lower decisions while reinstating the ban. Those decisions came after judges wrestled with the legality of the state law that backers said punishes licensed therapists for trying to change the sexual orientation of minors.
The 9th Circuit said lawmakers relied on sufficient credible data to pass the law, including scientific reports, expert testimony and anecdotal evidence. No mainstream psychological organization supports the treatment.
The Legislature also considered evidence that the practice is safe and effective, but the overwhelming consensus was that it was harmful and ineffective, Graber wrote for the panel.
“On this record, we have no trouble concluding that the Legislature acted rationally by relying on that consensus,” she said.
Graber said the court only had to decide whether the therapy was potentially harmful to children and didn’t need to decide if it was dangerous for adults because their emotions about their sexual identity may be vastly different.
Supporters of the therapy argued in court that the state law violated the free speech rights of counselors; the law was so poorly written that it left practitioners confused over determining the legality of their treatment; and trampled on parental rights to make mental health decisions for their children. In short, the proponents of the therapy argued that the state law cut off a legitimate mental health treatment.
The law says therapists and counselors who practice the therapy would be engaging in unprofessional conduct and subject to discipline by state licensing boards. It was supposed to take effect at the beginning of the year but was put on hold pending the 9th Circuit’s ruling. Thursday’s ruling reverses that injunction.