Monday, June 16, 2014
Guest Blogger Associate Dean and Professor Alicia Ouellette- Legal Issue or Culture War: Conversion Therapy in the Courts and Beyond
Last week, the Texas Republican Party adopted into its 2014 platform a passage that endorses so-called conversion or reparative therapy— a controversial but long-standing practice designed to alter an individual’s sexual orientation from homosexual to heterosexual. Not only did the party “recognize the legitimacy and value of counseling which offers reparative therapy and treatment to patients who are seeking escape from the homosexual lifestyle,” it declared that “No laws or executive orders shall be imposed to limit or restrict access to this type of therapy.”
The action by the Texas GOP raises the stakes in an increasingly contentious battle. Therapists of various stripes have attempted to convert homosexuals into heterosexuals since at least 1869. Early efforts took extreme forms. These included testicular transplants, hormone treatments, exorcisms, and various forms of aversion therapy— including electric shock or nausea-inducing drugs administered simultaneously with the presentation of homoerotic stimuli. In its modern form, conversion therapy involves psychoanalysis, talk therapy, and hypnosis. These forms of conversion therapy “are rooted in Freud’s idea that people are born bisexual and can move along a continuum from one end to the other.” Modern conversion therapists differ from their Freudian predecessors in that they theorize that humans are innately heterosexual and that it is environmental factors— early sexual abuse, overbearing mothers, and detached fathers—that cause homosexuality. As such, these practitioners believe that “sexual orientation can be reshaped.” 
Whatever its form or theoretical basis, conversion therapy has fallen out of favor. In 2009, the American Psychological Association denounced conversion therapy, and it has since been widely recognized that the practice is not effective and may cause or exacerbate psychological harm. Indeed, virtually every major health and mental health organization, including the AMA, the American Psychiatric Association, and the Pan American Health Organization, have questioned the scientific validity of conversion therapy, cautioned against its use, and warned that it threatens harm to the health and wellbeing of affected people. The organizational positions reflect the troubling stories told by survivors of conversion therapy, detailing humiliation, self-loathing, rejection, and suicidal feelings, as well as studies, such as this one, finding that conversion therapy patients are significantly more likely than their homosexual peers to report depression and eight times more likely to attempt suicide.
Despite these concerns, and as evidenced by the Texas GOP actions, conversion therapy has its proponents. These include licensed therapists and religious counsellors, and organizations such as the American Association of Christian Counselors, the National Association for Research and Therapy of Homosexuality (NARTH) and Jews Offering New Alternatives for Healing (JONAH) (formerly Jews Offering New Alternatives for Homosexuality).
For now, opponents have gained some legal ground. California and New Jersey have enacted laws that prohibit licensed professionals from using Sexual Orientation Change Efforts on minors. New York and Massachusetts legislators are currently debating whether to adopt similar bans. Similar bills have been introduced in at least twelve other states, but have met significant resistance and stalled.
Proponents of conversion therapy— including practitioners, parents, and children—have challenged the constitutionality of the California and New Jersey bans. The cases, Welch v. Brown, Pickup v. Brown, and King v. Christie, raise significant First Amendment and Due Process issues. For now, all eyes are on the California cases, which were consolidated sub nom Pickup v. Brown in the 9th Circuit Court of Appeals, and are presently before the Supreme Court on writ of certiorari.
The cases came to the 9th Circuit after two federal district court judges reached different conclusions on the law. In December 2012, U.S. District Judge William B. Shubb temporarily blocked the law in Welch, reasoning that the California law affected speech based on the content and viewpoint, and could not withstand strict scrutiny. The next day, U.S. District Judge Kimberly J. Mueller rejected the plaintiffs’ request for a preliminary injunction. In Pickup, she noted that courts “reaching the question have found that the provision of health care and other forms of treatment is not expressive conduct.” Judge Mueller determined the law was subject only to rational basis review.
A three judge panel of the Ninth Circuit Court of Appeals upheld the California statute in August 2013. The panel concluded that like other regulations of medical professionals, California’s law regulated conduct, and that with respect to conduct regulation, "the state's power is great, even though such regulation may have an incidental effect on speech." Applying a rational basis standard, the court rejected the claim that the California legislature acted irrationally. The Ninth Circuit issued an amended opinion and rejected en banc rehearing in January of this year.
The Supreme Court is reportedly scheduled to conference the petition for certiorari on June 26. In most cases, there would be little reason to think that the Court would agree to take up the case now. The Ninth Circuit decision is well reasoned; there is no Circuit split; and a decision from the Third Circuit in the New Jersey cases is still pending. Nonetheless, there are some reasons to think the Supreme Court might take the case. First, there was an extraordinary dissent by Judge O’Scannlain, joined by Judges Bea and Ikuta, in response to the Ninth Circuit’s decision to deny rehearing en banc. The dissenting judges began their decision practically inviting Supreme Court review by asking: “May the legislature avoid First Amendment judicial scrutiny by defining disfavored talk as ‘conduct’? That is what these cases are really about.” Framed as such, the case is likely to appeal to some of the Justices. Moreover, the public attention to these cases— including the politicization of the issues around conversion therapy as a family rights and religious issue by Texas Republicans and other groups—might well persuade some additional Justices that the California law deserves Supreme Court scrutiny.
Regardless of the Supreme Court’s decision on the certiorari petition in Pickup, the legal status of conversion therapy will remain contentious as additional states consider bans, and others are pushed by their parties to endorse and protect the practice. The debate will not affect only the parties directly involved with conversion therapy. The cases raise fundamental questions concerning the scope of state authority to regulate medical practice.
 Elijah Wolfson, Texas Republican Party Adopts Discredited ‘Reparative Therapy’, Newsweek, June 10, 2014, available at http://www.newsweek.com/texas-republican-party-adopts-discredited-reparative-therapy-gays-254168.
 Anton, B. S. (2010). Proceedings of the American Psychological Association for the legislative year 2009: Minutes of the annual meeting of the Council of Representatives and minutes of the meetings of the Board of Directors. American Psychologist, 65, 385–475, available at http://www.apa.org/about/policy/sexual-orientation.pdf.