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Ninth Circuit Court Upholds California’s Gay Therapy Ban for Minors

Jim Burroway

August 29th, 2013

The Ninth Circuit Court of Appeals has upheld California’s law banning licensed profesionals from providing Sexual Orientation Change Efforts (SOCE) to minors. The critical point during oral arguments before the court was whether the ban infringes on therapists’ free speech rights or regulates professional conduct. In the unanimous decision by Chief Judge Alex Kozinski and Circuit Judges Susan P. Graber and Margan Christien, the court settled on the latter.

In the opinion written by Judge Graber, the court began by describing what the law, known as SB 1771, does and does not do (PDF: 171KB/36 pages):

Importantly, SB 1172 does not do any of the following:

  • Prevent mental health providers from communicating with the public about SOCE
  • Prevent mental health providers from expressing their views to patients, whether children or adults, about SOCE, homosexuality, or any other topic
  • Prevent mental health providers from recommending SOCE to patients, whether children or adults
  • Prevent mental health providers from administering SOCE to any person who is 18 years of age or older
  • Prevent mental health providers from referring minors to unlicensed counselors, such as religious leaders
  • Prevent unlicensed providers, such as religious leaders, from administering SOCE to children or adults
  • Prevent minors from seeking SOCE from mental health providers in other states

Instead, SB 1172 does just one thing: it requires licensed mental health providers in California who wish to engage in “practices . . . that seek to change a [minor’s] sexual orientation” either to wait until the minor turns 18 or be subject to professional discipline. Thus, SB 1172 regulates the provision of medical treatment, but leaves mental health providers free to discuss or recommend treatment and to express their views on any topic.

The court drew on several precedents, including a case involving unlicensed psychoanalysts, who had claimed that being sanctioned by the state for being unlicensed amounted to an infringement on their free speech rights because, after all, they were only talking in their counseling sessions. Prior courts held that “communication that occurs during psychoanalysis is entitled to constitutional protection, but it is not immune from regulation.” The court also drew on another case in which a doctor’s prescribing privileges were beign revoked because he recommended medical marijuana for his patient. That court drew a distinction between the doctor’s recommendation — a discussion that occured in the office — and the doctor’s prescribing it — which had not occurred — in its ruling in the doctor’s favor. Based on those two cases:

We distill the following relevant principles from NAAP and Conant: (1) doctor-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 only remaining question before this court, then, was “whether or how the First Amendment applies to the regulation of specific mental health treatments.” The court chose to approach that question by “view(ing) this issue along a continuum.” At one end is where a professional is speaking publicly as an advocate. At that end, First Amendment protections are at their greatest. But moving toward a middle ground are laws which require doctors to “disclose truthful, nonmisleading information to patients about certain risks of abortion.” In that setting, a previous court had found that “the physician’s First Amendment rights not to speak are implicated, but only as part of the practice of medicine, subject to reasonable licensing and regulation by the State.” (Emphasis in the original.) Also, doctors do not enjoy First Amendment protections for giving negligent medical advice to their patients:

Thus, the First Amendment tolerates a substantial amount of speech regulation within the professional-client relationship that it would not tolerate outside of it. And that toleration makes sense: When professionals, by means of their state-issued licenses, form relationships with clients, the purpose of those relationships is to advance the welfare of the clients, rather than to contribute to public debate.

The far end of the court’s continuum is in the regulation of professional conduct, were that conduct is the provision of a medical service, even if that service is in the form of speech.

Most, if not all, medical treatment requires speech, but that fact does not give rise to a First Amendment claim when the state bans a particular treatment. When a drug is banned, for example, a doctor who treats patients with that drug does not have a First Amendment right to speak the words necessary to provide or administer the banned drug. …

Senate Bill 1172 regulates conduct. It bans a form of medical treatment for minors; it does nothing to prevent licensed therapists from discussing the pros and cons of SOCE with their patients. Senate Bill 1172 merely prohibits licensed mental health providers from engaging in SOCE with minors.

Moving from First Amendment considerations, the court then ruled that California’s legislature had a rational basis for regulating SOCE for minors, that SB 1172 is not unconstitutionaly vague or overly broad, and that it does not infringe on parents’ fundamental rights to determine the care their children would recieve:

We are unaware of any case that specifically addresses whether a parent’s fundamental rights encompass the right to choose for a child a particular type of provider for a particular treatment that the state has deemed harmful, but courts that have considered whether patients have the right to choose specific treatments for themselves have concluded that they do not.

…[T]o recognize the right Plaintiffs assert would be to compel the California legislature, in shaping its regulation of mental health providers, to accept Plaintiffs’ personal views of what therapy is safe and effective for minors. The aforementioned cases lead us to conclude that 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.

Therefore, SB 1172 does not infringe on the fundamental rights of parents.

The Ninth’s ruling settled two conficting lower-court rulings. In one case brought by the PAcific Justice Institute on behalf of two NARTH-associated therapists and a student who claimed to have benefited from SOCE, the lower court granted a very limited preliminary injunction against the state of California from enforcing the law. In a second case brought by Liberty Counsel on behalf of NARTH member David Pickup and backed by NARTH, the lower court denied their petition for an injunction.

NARTH has issued a statement saying that it plans to appeal the Ninth Circuit’s ruling:

At a time when adolescents who experience themselves as being the wrong biological sex are allowed to pursue sexual reassignment surgery, licensed therapists who are willing to assist youth with unwanted same-sex attraction and behaviors will be prohibited from even talking to minors in a manner that could be construed as promoting the pursuit of change.

Politicians and non-elected judges have seen fit to approve of such encroachments on personal and professional freedoms in spite of the fact that the American Psychological Association admits the exact causes of same-sex attractions are not known, virtually no research exists directly addressing the modification of same-sex behaviors and attractions with minors, and the prevalence of harm from such change efforts is unknown and has therefore not been established as being any greater than the rates of harm documented for psychotherapy in general. Furthermore, much research has documented that fluidity in sexual attractions and identity often occurs naturally and is particularly pronounced in adolescence and early adulthood, which suggests the viability of therapeutic change efforts for some youth.

These facts make it clear that science is not at the forefront of this effort to restrict freedoms. If that were the case, gaps in our knowledge of this area would be addressed through a bipartisan program of research, not by the heavy hand of government squelching professional practice in order to appease powerful interests of activists within professional associations and lobbying groups. NARTH sincerely hopes that these crucial facts will be considered by a more receptive judicial audience in the future.

Comments

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Priya Lynn
August 29th, 2013 | LINK

“NARTH has issued a statement saying that it plans to appeal the Ninth Circuit’s ruling:

“At a time when adolescents who experience themselves as being the wrong biological sex are allowed to pursue sexual reassignment surgery,””.

I don’t believe there’s any truth to the claim that minors are allowed to pursue sexual reassingment surgery. Every jurisdiction I’ve heard about requires minors to wait until the age of 18 to undergoe sex reassignment surgery. Given that, what California has done with banning sexual orientation change efforts for minors is no different than what is done for minors desiring sex reassignment surgery.

Sir Andrew
August 29th, 2013 | LINK

Is this correct?
“…who had claimed that being sanctioned by the state for not being unlicensed amounted to an infringement…”

I think that is the opposite of what the case was about. Are you sure the word ‘not’ should be in that sentence? Or the word ‘unlicensed’ should have the ‘un’ removed.

Priya Lynn
August 29th, 2013 | LINK

I think its correct Andrew. If you’re unlicensed you can counsel minors to change their orientation but if you’re licencsed you can be sanctioned for doing so.

Jim Burroway
August 29th, 2013 | LINK

You’re right Andrew. I let my double negatives get away from me.

bill johnson
August 29th, 2013 | LINK

Two things:
1. NARTH starts out by lying about what the law does saying that therapists “will be prohibited from even talking to minors in a manner that could be construed as promoting the pursuit of change.”

The 9th circuit just spelled out exactly what the law does and doesn’t do and yet NARTH is still lying about its effects proving that they don’t have a leg to stand on and are reduced to lying about what the law does to justify opposing it.

2. They say that “virtually no research exists directly addressing the modification of same-sex behaviors and attractions with minors” Hello????

A. If there’s no research to back this up then NARTH is basically admitting that there is no support for what they’re doing and that they are essentially experimenting on kids.

B. Their Name is NARTH, National Association for RESEARCH and Therapy of Homosexuality. So you have a group that is supposedly concerned with research in this area saying that the state can’t do anything because there is no research and complaining that none is being done. I guess they are too busy subjecting kids to change therapy to actually bother doing any research to see if it works.

Their own press release completely destroys their case, if this does get appealed to another level maybe the state should submit NARTH’s press release as evidence.

J.R. Johnson
August 31st, 2013 | LINK

Yes, repair therapy to treat gayism, lesbianism often fails as repair therapy does for drug junkyism-this should be there for those who want this. Yes, proof burden is on repair therapists, but if you aren’t going to have repair therapy for gayism, then you may as well not have repair therapy for drug junkyism or drunkardism, because it often fails. Repair therapy for gays and lesbians who want to be straight must be available just as repair therapy must be available for a drug junky who wants to become clean.

Sex changes should be abolished. I’m against sex changes for the same reason as I oppose trying to make a White person Black or viceversa because they think they were born of another race. Sex changes are a sad waste of science. Incidentally, must repeat that I am not religious so don’t give me a lecture on Christianity, Islam or so on. My reasons for being against gayism, lesbianism and transsexuality is unrelated to any faith.

And minors can not be forced into repair therapy-unless there is a court order, people can not be forced into any medical or psychologial treatment. There are court orders where a convicted drunk driver is reqd. to have counseling. If the drunk driver does not sincerely want to change, then forced counseling is not going to help them.

Mainstream psychology/medicine is not to be trusted on gay/lesbian topic and too many people accept what is said w/o challenging or having doubts. You can pay experts to say things which agree with gay/lesbian agenda and that is has happened with psychology/medicine since 1973. Can sexual orientation for some gays and lesbians change-in 2001 Dr. Spitzer said that change was possible for highly motivated individuals and that it happened after long journey and he got condemned by gay/lesbian groups. In 2007, he said that while gays and lesbians should not be forced into therapy, he believed it was the hubris of psychologists to deny this for those who want it. In 2012, Dr. RL Spitzer retracted, apologized to gay/lesbian groups, saying therapy doesn’t work and condemned it. What I must wonder is did Dr. Spitzer in 2012 say what he believed, or did he say it to pacify gay/lesbian groups ? People have a right to doubt Dr. Spitzer’s sincerity.

Ben in Oakland
August 31st, 2013 | LINK

Gay ism?

Tee and hee.

J.R. Johnson
August 31st, 2013 | LINK

The posters denying the link between childhood sex abuse and adult gay/lesbian behaviors including here are usually gay, lesbian or a sympathizer. But honestly, it’s my view that you’re denying what you know is true because any behavior including sexual behavior can be learned by what 1 sees in youth. Sex abuse in youth can cause people to behave in ways they wouldn’t have. It’s not controversial to talk of nightmares, suicides, bedwetting often a result of sex abuse in youth esp. sex abuse where gays homolest young boys.

Yet when 1 talks of a person doing gay/lesbian behaviors in adulthood because this is sexual behavior they learned by being repeatedly homolested when they were boys, then the gays with politically safe psychologists complain about how their’s no link, but this is rubbish. The politically correct psychologists who deny this know it’s possible for a boy to turn out gay as a result of childhood sex abuse, yet they still deny what they know is true. Most transexuals were sexually abused in childhood which messed up their minds. Abolish sex change maimings. Childhood sex abuse does cause adult gay/lesbian behaviors for some and it’s undebatable truth.

Priya Lynn
August 31st, 2013 | LINK

Absolute rubbish JR. There is no link between child sexual abuse and gayness. The vast majority of gays and lesbians were never abused and most sexually abused children turn out heterosexual. The issue has been researched in detail and no link has ever been found because there isn’t one.

You’re just making crap up to promote the oppression of innocent LGBT people. We are knowledgeable people here, you can’t B.S. us.

Priya Lynn
August 31st, 2013 | LINK

And of course its nonsense that Spitzer would ignore LGBT criticisms of his study for eleven years and then suddenly decide he couldn’t take the pressure and renounce what he believed was correct.

He renounced his 2001 study because he recognized the criticisms were correct. Virtually everyone who said they had changed was a paid “exgay” advocate and there was no reason to believe they all weren’t lying about having changed as all refused objective testing of their claims. If they were telling the truth they wouldn’t have refused to have their claims put to the test.

Ben In Oakland
August 31st, 2013 | LINK

Propaganda isn’t fact.

stupid is as stupid does. and stupid just keeps doing it.

J.R. Johnson
August 31st, 2013 | LINK

Priya Lynn, I have seen your posts before in difft. sites and they rerun the same rubbish and since you’re a transsexual (they should abolish sex changes), your view is worthless-it’s best to not trust gay/lesbian groups and best to not trust transexuals.

With the gays/lesbians who say they changed orientation, the # was small. Unless they relapsed such as go back to gay/lesbian conduct-same way a drug junky goes back to drugs, if they say they changed their orientation to straight-then only they know if they changed or not. But honestly, gay/lesbian groups, AMA and so on would be against repair therapy even if repair therapists found 100% cure for homosexuality and lesbianism. Whether it works is a minor topic-they’re against it even if they discovered 100% cure for homosexuality and lesbianism.

Gay/lesbian conduct are bad for health =smoking. There are many like me who do not trust the American Medical Association (AMA) on gay/lesbian topic because the AMA and APA are both pro-gay/lesbian ideologues who arrogantly think because are Drs., that they know the answers. But they are dishonest.

Paid experts can say things to support gay agenda or any agenda. That happened in Jodi Ann Arias trial where there were paid experts who said that the convicted murderess had transit amnesia, that she was a domestic assault & battery victim and that the victim really was not dead when he was shot in head. Jury did not believe the Drs. who testified for Jodi Ann Arias (they did it for $ and did not care about truth) and they convicted her of Murder 1.

The AMA is comparable to this in that they are pro-gay ideologues saying what they know is false. AMA denies link between childhood sex abuse and homosexuality/transexuality but AMA is saying what they know is false.

33% of gays report homosexual rape in youth. Many gays and lesbians who commit suicide do so because they often were childhood sex abuse victims and many have other copathologies such as antisocial conduct, drugs, etc. Sex abuse especially homosexual rape in youth is major cause of homosexuality & transexuality-those who deny it are dishonest, delusional or both. It remains to be seen how many of Gerald Arthur (Jerry) Sandusky’s victims will think think they’re gay or worse transexual because of this. Any Dr. who says there is no link between childhood sex abuse and a kid doing gay/lesbian conduct is dishonest, delusional or both. Of course, not all who are sexually abused in youth become gay in adulthood-but the risk is higher. I don’t care what the AMA says.

J.R. Johnson
August 31st, 2013 | LINK

Also I have never heard straight people blame sex abuse for a reason a man has sex with women and kids with her but I sometimes hear gays & lesbians especially gays report childhood sex abuse especially homosexual rape. If a boy is repeatedly homosexually raped in his youth, the likelihood is more that he’ll do homosexual behaviors in adulthood because the sex abuse can damage mind and cause people to act in ways they normally wouldn’t. To deny it is dishonest.

It’s like if a kid lives in a high crime neighborhood & sees muggings, the likelihood is more that he’ll be a mugger in his adulthood because of what he learned in his youth. It remains again to be seen how many of Gerald Arthur (Jerry) Sandusky’s victims will think in their adulthood that they’re homosexual. No, not all boys who are homosexually raped in youth become homo in adulthood & yes, there are many gays who weren’t homosexually raped in their youths. But homosexual rapes in youth incr. risk of a boy turning out homosexual. Homosexual behaviors are often result of something bad in life such as possibly bad genes though they’ve not conclusively proven it’s inborn & or sex abuse especially homosexual rape. There has been unproven speculation about soy during pregnancy, Fetal Alcohol Syndrome and women smoking marijuana during pregnancy & gay/lesbianism.

Priya Lynn
August 31st, 2013 | LINK

JR, I own my body, I and only I get to decide what is done with it. You have no say in what I or any transexual does with their body. The only life you have a right to control is your own.

Now go off somewhere and cry yourself to sleep because no one gives a damn that you don’t want people to have sex changes and you’ll never be able to stop them.

J.R. Johnson
August 31st, 2013 | LINK

If laws are passed against sex changes, then yes. Priya Lynn, it doesn’t take an expert to know that hormone shots + the maiming surgery damages the body. Transexuals have antisocial personalities because the hormone shots damage mind. Sex changes happen because science knows how. If they knew how to change skin color, Drs. would be making the same justifications for changing color of people who think they are of other race as they now do for sex changes.

Your view Priya Lynn as a transsexual is not to be trusted. There are Drs. who have said that sex changes are a surgical maiming.

J.R. Johnson
August 31st, 2013 | LINK

Incidentally, if it were my druthers, would also get rid of breast implants (most men like big boobed women, but most men want a woman with natural boobs-small, medium or big vs. a woman with implants. That means all things =, you have a woman with small boobs vs. a woman with breast implants, most men would take the woman with smaller boobs because she is natura), Viagra, tubals and vasectomies-because those are artificial and not about curing anything. I support birth control, fertility treatments and IVF and I am pro-choice on abortion.

Ted W. Lieu who sponsored the California law is against repair therapy, but Ted W. Lieu is likely an apologist for sex changes and Ted W. Lieu sees nothing wrong with giving a kid hormones to make them fake opposite sex members. Don’t be surprised if in future, Ted W. Lieu or those like him would ban repair therapy altogether for gayism/lesbianism and the 2012 law is just the first step.

We have sadly lost the information war on homosexuality and this is no surprise. In 1972, 1982 or 1992, we would be discussing truth that there’s something wrong with gay/lesbian behaviors and that there’s something wrong with transexuality-transexuals are worse than gays. But since the 2000s, the discussion is mainly about gay marriage, which U.S. Supreme Court has allowed and little talk is being given to the fact that there’s something wrong with gayism. Fact that information war is lost doesn’t change truth that there is something wrong with gay/lesbian conduct and that sex changes are worse.

Again, I’ve never heard a straight person blame childhood sex abuse for reason a man has sex with a woman & has kids with her (it’s straight sexual behavior penis/vaginal sex which results in procreation while gays and lesbians behavior doesn’t as gays/lesbian couples who have kids use A.I.) but I’ve heard some gays & lesbians blame bad things such as childhood sex abuse – undebatable truth that if a person’s a victim of childhood sex abuse, then it’s more likely he or she will do gay/lesbian conduct repeating what learned. Many gays were victims of homosexual rapes when they were boys such as by gay priests. Childhood sex abuse especially homosexual rape is a major cause of gay. It’s my belief that you know this but dispute what you know is true.

Jim Burroway
August 31st, 2013 | LINK

I’m rather disappointed in you guys. You know better than to feed the trolls.

As for the troll himself, there are people who come here, with all ranges of opinions and perspectives, who comment to engage in conversations. Others come to stir arguments. J.R. Johnson is behaving like the latter. When he reviews our comments policy and decides to engage in respectful dialogue while defending his opinions and perspective, I will release him from moderation.

Richard Rush
September 2nd, 2013 | LINK

Does funinsnow ring a bell?

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