SAN FRANCISCO -- A federal appeals court Wednesday grappled with whether a California ban on therapy to change a minor’s sexual orientation amounted to a restriction on free speech or mere regulation of a medical treatment.
During a hearing in San Francisco, a three-judge panel of the U.S. 9th Circuit Court of Appeals considered two lower-court rulings that reached opposite conclusions about the constitutionality of the new state law, which would penalize licensed health professionals who try to change a minor’s sexual orientation.
The panel included two judges appointed by Democratic presidents -- Judge Susan Graber, named by President Clinton, and Judge Morgan Christen, a President Obama nominee -- and Chief Judge Alex Kozinski, a Ronald Reagan appointee with a libertarian streak.
The California law banning so-called conversion therapy, the first of its kind in the country, was supposed to have taken effect in January. But therapists and families challenged it, and the 9th Circuit put it on holding pending a ruling, which is expected in a few months.
Graber noted that courts have determined that talk therapy was a form of treatment.
“Why shouldn’t we view this type of therapy … to be a form of medical treatment that is subject to the usual amount of legislative oversight?” she asked.
She also suggested the court could construe the law to ensure that therapists would still have the right to discuss “the pros and cons” of conversion therapy.
But Mat Staver, whose clients include a teenager undergoing the therapy, called the ban “breathtakingly broad” and told the court it would subject therapists to discipline and loss of their licenses for even telling minors about the possibility of changing one’s sexual orientation.
Rather than simply regulating medical treatment, legislators “have gone far beyond that to intrude on protected constitutional liberties of freedom of speech,” Staver said.
Kozinski asked why the Legislature was not entitled to regulate a medical treatment by professionals licensed by the state.
“Why can’t the Legislature say, ‘We looked into it, we think it is harmful, we think it causes harm to minors … and we the Legislature are going to protect them,” Kozinski asked.
At the same time, Kozinski observed that even a small limitation on free speech was impermissible – “It doesn’t have to be breathtaking” — and would have to be justified by compelling reasons.
“We don’t have any compelling evidence” that the therapy should be banned, he said.
Deputy Atty. Gen. Alexandra Robert Gordon disagreed, saying the nation’s leading mental health organizations have determined the therapy is ineffective, risky and based on the “discredited notion that homosexuality is a disease.”
She said researchers can’t ethically subject children to such therapy to test whether it leads to suicidal thoughts or other harm. “No review board would ever sanction that kind of experiment,” she said.
Kozinski, apparently unsatisfied, persisted. “Point me to the one piece of evidence we can call compelling saying that this causes harm.”
But Graber noted that compelling justification of the ban would be needed only if the court determined it infringed on free speech. Talk therapy is entitled to some constitutional protection but is not immune from regulation, Graber said.
Treatments to change sexual orientation include psychoanalysis, behavioral therapy and religious and spiritual counseling. In the past, some licensed therapists have practiced aversion therapy, using nausea-inducing drugs to combat sexual impulses, and hormone treatments.
Therapists seeking to change a patient's orientation also have encouraged men to spend more time with heterosexuals, participate in sports and avoid members of the opposite sex, except for romantic contact.