Members of the U.S. 9th Circuit Court of Appeals

Members of the U.S. 9th Circuit Court of Appeals, which has put on hold for 90 days a ruling that upheld California's law barring therapists from seeking to change minors' sexual orientation. (Gina Ferazzi / Los Angeles Times / March 26, 2009)

SAN FRANCISCO — A federal appeals court agreed Monday to put on hold a ruling in favor of a California law that bans licensed therapists from trying to change a minor’s sexual orientation.

A three-judge panel of the U.S. 9thCircuit Court of Appeals gave opponents of the ban 90 days to appeal to the U.S. Supreme Court.

The 9th Circuit upheld the law in August and refused last month to hear another challenge. Liberty Counsel, a religious rights group, then asked the court to block enforcement of the law pending an appeal to the high court.

In upholding the ban, the 9th Circuit said the law regulated conduct, not speech, and did not violate the 1st Amendment rights of patients or therapists or the fundamental rights of parents.

Psychological associations say that attempting to change a minor’s same-sex attractions is generally futile and potentially harmful.

Judges Diarmuid O’Scannlain, a Ronald Reagan appointee, joined by Judges Carlos T. Bea  and Sandra S. Ikuta, both appointed by George W. Bush, dissented when the 9th Circuit refused to rehear the case before a larger, en banc panel.

O’Scannlain said the three-judge ruling “insulates from 1st Amendment scrutiny California’s prohibition — in the guise of a professional regulation — of politically unpopular expression.”

“The Supreme Court has chastened us lower courts for creating, out of whole cloth, new categories of speech to which the 1st Amendment does not apply,” O’Scannlain wrote. “But, that is exactly what the panel’s opinion accomplishes in this case.”

California was the first in the nation to subject licensed mental health therapists to discipline if they tried to change a minor’s same-sex attractions. The law was supposed to take effect in January 2013, but challenges have prevented its enforcement.

New Jersey has passed a similar law, which Liberty Counsel is also challenging. The group has said it is  fighting attempts to ban the therapy in other states.

“The minors we represent do not want to act on same-sex attractions, nor do they want to engage in such behavior,” sad Mat Staver, founder and chairman of Liberty Counsel. “They are greatly benefiting from this counseling.”

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