Tuesday, December 4, 2012
California's SB 1172, slated to become effective January 1 and prohibiting licensed therapists from performing what is known variously as sexual conversion therapy, reparative therapy, or sexual orientation change efforts (SOCE) on minors under the age of 18. Senior District Judge William Shubb, in an opinion issued late yesterday in Welch v. Brown, has issued a temporary injunction of the statute.
Considering the claims of two therapists and one potential therapist who had undergone SOCE as an adult, Judge Shubb first held that the plaintiffs did not have third party standing to assert the claims of minors or parents. As to the therapists, however, Judge Shubb held that their First Amendment claims were entitled to strict scrutiny which they were unlikely to survive on the merits.
In so doing, Judge Shubb rejected the argument that lesser standards under the First Amendment should apply given that the regulation was directed at a profession. Additionally, the judge rejected the argument that the regulation was directed at conduct rather than speech, holding that because "at least some forms" of SOCE involve "talk therapy," speech was the central issue.
Supporting the conclusion that strict scrutiny was the correct standard, Judge Shubb focused on the legislative history of SB1172: the "Legislature’s findings and declarations convey a consistent and unequivocal message that the Legislature found that SOCE is ineffective and harmful."
Below is a video of the legislative floor statement of the bill's sponsor, Senator Ted Lieu, and the subsequent vote:
For Judge Shubb, because "a mental health provider’s pursuit of SOCE is guided by the provider’s or patient’s views of homosexuality, it is difficult, if not impossible, to view the conduct of performing SOCE as anything but integrally intertwined with viewpoints, messages, and expression about homosexuality." Thus, Judge Shubb concluded that the statute was undoubtedly subject to strict scrutiny.
In addition to Ninth Circuit precedent, Judge Shubb relied heavily upon the Supreme Court's 2011 decision in Brown v. Entertainment Merchants Ass’n, finding unconstitutional California's violent video game sale to minors prohibition. Quoting from Entertainment Merchants, Judge Shubb stressed that SB1172 cannot survive strict scrutiny "unless the state demonstrates an “'actual problem’ in need of solving” and “a direct causal link” between SOCE and harm to minors. While protecting minors was a compelling state interest, Judge Shubb faulted the legislative findings:
evidence that SOCE “may” cause harm to minors based on questionable and scientifically incomplete studies that may not have included minors is unlikely to satisfy the demands of strict scrutiny.
Judge Shubb also faulted the "underinclusiveness" of the statutory scheme:
Here, SB 1172 prohibits only mental health providers from engaging in SOCE and, as defendants have pointed out, unlicensed individuals who do not qualify as “mental health providers” under the bill can engage in SOCE. If SOCE is harmful and ineffective, the harm minors will endure at the hands of unlicensed individuals performing SOCE is equal, if not greater,than the harm they would endure from mental health providers performing SOCE. In fact, the California Legislature has previously “recognized the actual and potential consumer harm that can result from the unlicensed, unqualified or incompetent practice of psychology.” [citation omitted] The limited scope of SB 1172 therefore suggests that it is likely underinclusive in its application only to mental health providers.
Given Judge Shubb's reasoning, it is likely that he will issue a permanent injunction and equally likely that the decision will be appealed to the Ninth Circuit.