That a tiny market for conversion therapy to "cure" homosexuality still exists today is deeply sad, even infuriating. But here's the question: If a competent adult knows the most devastating critiques, and wants to pay for it anyway, should California law thwart him or her?
The Assembly thinks so. Assembly Bill 2943, which State Rep. Evan Low shepherded through passage last week, declares that "the potential risks of reparative therapy are great, including depression, anxiety and self-destructive behavior, since therapist alignment with societal prejudices against homosexuality may reinforce self-hatred already experienced by the patient."
The bill then goes on to prohibit advertising, offering or engaging in "sexual orientation change efforts with an individual," treating such acts as a form of consumer fraud.
Supporters say the change is long overdue: Same-sex attraction is not an illness requiring treatment and, regardless, there is no scientific evidence that conversion therapy is effective. It is already banned for those under age 18.
But the bill's critics, who hope it dies in the state Senate or is vetoed by the governor, say the wrongheadedness of such therapy is beside the point. In their view, a person's freedom to choose and pursue goals in professional therapy is sacrosanct; the bill infringes on therapists' 1st Amendment rights; and because of its language, such a law would have more sweeping consequences than supporters acknowledge.
That last claim requires some unpacking. As you'd expect, a lot turns on how "change efforts" are defined.
The text spells it out explicitly: It prohibits "any practices that seek to change an individual's sexual orientation." Would that clause make it illegal to market a book that urges readers to change their sexual orientation through prayer, as some religious conservatives have asserted? Probably not. Books aren't a change effort "with an individual" and no federal court would let a ban on religious books stand.
A subsequent passage, however, is more sweeping. It prohibits "efforts to change behaviors or gender expressions, or to eliminate or reduce sexual or romantic attractions or feelings toward individuals of the same sex."
That goes even beyond trying to change sexual orientation.
Indeed, it would seem to encompass a gay man who goes to a therapist and says, "Look, I understand that you can't make me straight, but I'm married to a woman, we have children, and I want to try to be faithful to her and focus on our family at least until the kids are out of the house — can you help me to change my behavior, or at least reduce how often I think about sex with men?"
Or, a woman goes to a therapist and says, "I was assigned the sex female at birth, but lately I just don't know if I am trans or not. I've always hoped to get pregnant one day, and everything would be so much easier if I could be comfortable in my body so I don't feel any need for surgery or hormones or even these men's clothes." Would helping her try to "change gender expressions" be illegal? Should it be?
The matter is complicated by yet another clause that lays out what are not "change efforts." The bill says it is OK for therapists to support "identity exploration and development, including sexual orientation-neutral interventions to prevent or address unlawful conduct or unsafe sexual practices."
In other words, to settle what the law really is saying will require a decade of court battles.
Gay rights and acceptance have come far, and the internet has made it so much easier for young people to connect to supportive communities and identify hucksters. Individuals who still seek out conversion therapy have suffered from something no law can prevent: family, friends or a religious community so hostile that the person hopes to change who they are. If the law pushes people toward religious counselors who do "gay conversion therapy" for free (and thus legally), are we confident anyone is going to be better off?
Any bill of this sort would raise questions about limiting free speech and religious liberty, infringing on the autonomy of consenting adults, and paternalistic use of consumer protection laws. (Will the Assembly come for reiki next?) But this bill specifically, under close reading, has problems all its own.
California legislators ought to hope for the overdue demise of conversion therapy, but reject this bill as the wrong way to achieve it.
Conor Friedersdorf is a contributing writer to Opinion, a staff writer at the Atlantic and founding editor of the Best of Journalism, a newsletter that curates exceptional nonfiction.