May 01, 2015

Prohibiting Child from Engaging in Sex Orientation Therapy Did Not Violate Parents’ Rights

Scott Trowbridge

The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.

Doe v. State, 2015 WL 1610198 (3rd Cir.).

Statute prohibiting youth from engaging in sexual orientation change counseling did not impermissibly interfere with his parents’ rights. Parents do not have unqualified latitude to have their children engage in treatments that are deemed medically or psychologically harmful.

This case began when a youth and his parents challenged a state statute banning sexual orientation change effort (SOCE) counseling. The child had been in SOCE counseling to address unwanted same-sex attractions and felt he was benefiting from it. The suit was filed before the Third Circuit’s decision in King v. State, 767 F.3d 216 (3d Cir. 2014). 

In King, licensed counselors challenged the same statute. The Third Circuit held the statutory ban on SOCE for minors was a permissibly tailored regulation of speech and did not infringe on the right to free exercise of religion.

The statute prohibited licensed counselors from trying to change the sexual orientation of a person under 18. The statute did not cover services for someone attempting to change genders or  efforts to address unlawful conduct or unsafe sexual practices.

The district court dismissed the case finding the prohibition on SOCE counseling was not on speech. Regarding freedom of religion, it found the statute was neutral and generally applied. Last, the parents claimed the statue violated their fundamental right to parent. The district court found case law did not give parents an unqualified right to choose medical treatment. The child and his parents appealed.

The Court of Appeals affirmed. First, the court briefly summarized the legislative history describing the American Psychological Association’s review of SOCE. The resulting report detailed health risks for those who participated in SOCE, including depression, substance abuse, suicide, and others. It also reviewed the American Academy of Child and Adolescent Psychiatry’s article finding no evidence that sexual orientation could be altered by therapy. 

The court noted that most of the plaintiffs’ claims were addressed in King, including freedom of speech and religion. The court did not find the facts led to a different result on those claims.

One issue not addressed in King was whether the statute violated the parents’ fundamental right to make decisions about the care, custody, and control of their children. The court looked to case law where parental rights had been limited to protect the ‘physical or mental health’ of children. Although parents generally have a right to make medical decisions, they cannot demand from the state a particular treatment. The court cited the Ninth Circuit’s reasoning in Pickup v. Brown, 740 F.3d 1208 (9th Cir.) to support this conclusion.