October 01, 2013

Statute Prohibiting Sexual Orientation Change Therapy for Youth Held Constitutional

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.

Pickup v. Brown, 2013 WL 4564249 (9th Cir.).

Legislature did not unconstitutionally infringe on therapists’ or families’ rights to engage in sexual orientation change therapy because law narrowly outlawed the practice and not speech about the practice. Legislature required only a rational basis to regulate medical treatment and consensus of medical community showed anecdotal reports of harm and no demonstration of efficacy.

This case concerned two groups of plaintiffs who sought injunctions and declaratory relief against a state statute that prohibited state-licensed mental health providers from providing “sexual orientation change efforts” (SOCE) for anyone under age 18. The two cases involved SOCE practitioners, pro-SOCE advocacy organizations, and children and parents involved in the practice. 

The two district court rulings conflicted, one finding the statute could not survive strict scrutiny and the other that the statute did not regulate speech and had a rational basis. The second court further found the law did not unduly interfere in constitutionally protected parental rights. The cases were consolidated for appeal. 

The Ninth Circuit Court of Appeals first noted that it exercised plenary review because the ruling concerned only questions of law, the facts being uncontested in all important respects. 

The court then reviewed the history of SOCE and the medical treatment of homosexuality. SOCE share the aim of changing an individual’s sexual orientation from homosexual to heterosexual. Treatments have included aversive treatments such as induction of vomiting, paralysis, electric shocks, and even castration. The court noted the plaintiff practitioners involved in the case practiced only nonaversive techniques such as assertiveness, social training, and reinforcement. 

In the early 1970s, homosexuality was determined not to be an illness or mental disorder by major national medical and psychological organizations. Current mainstream treatment related to homosexuality focuses on coping with stigma. Only a small number of mental health practitioners advocate in favor of or practice SOCE. 

In enacting the law, the California legislature relied on materials explaining the potential negative effects of SOCE from nine national and one international organization. The legislature relied strongly on a report by the American Psychological Association from a systemic review of scientific literature on SOCE. Overall, the report found no evidence that SOCE was effective and that anecdotal reports of harm raised serious concerns about the practice.

The court addressed the plaintiffs’ arguments that the law violated free speech under the First Amendment. The court noted the law prohibited providing SOCE to youth, but did not prevent mental health providers from discussing the topic, recommending it, or referring youth to unlicensed providers such as religious leaders. 

The court reviewed prior cases involved free speech challenges in the medical context, one involving medical marijuana and one licensure testing where the tests only covered certain theories of psychological treatment. The court explained that those cases held that doctor-patient communications are protected by the First Amendment and that therapists and counselors are not provided special protection because their treatment is given verbally.

In the context of medical and mental health providers, at one end of a continuum, there is great protection for their engaging in public dialogue; for example in advocating for a medical procedure outside the mainstream. In the middle, within the relationship of the professional and patient, protection is lessened. The state may interfere regarding speech to ensure medical advice is not harmful. 

At the other end, for medical treatment where speech is only incidental, the First Amendment would not be implicated; for example, in the incidental speech associated with a doctor telling a patient to take a banned drug. Otherwise, any ban on a type of medical treatment would raise free speech concerns. 

The court held that given the information about potential harms and the only effect of the law on speech, the legislature acted rationally and constitutionally in enacting the law. The legislature did not need overwhelming evidence of SOCE being harmful under a rational basis standard. The anecdotal reports of SOCE leading to depression, suicidal ideations, and substance abuse, in face of the lack of proven efficacy were sufficient. 

The court next addressed the argument that the law violates plaintiffs’ freedom of association. Freedom of association concerns intimate relationships, decisions about marriage, children, and cohabitation. It also concerns freedom to engage in First Amendment-related activities including speech, assembly, and religion. The court concluded that therapists and clients do not have the type of intimate relationships protected by the clause. 

As to vagueness, the court found the law was clear in what it prohibited even to the general public. Further, since the law regulates conduct of treatment professionals, with their specialized knowledge, especially those who engage in SOCE, they cannot claim to not understand what the law prohibits. 

Regarding the fundamental right to make parenting decisions about their children’s medical treatment, the court concluded parents do not have a right to choose medical treatment deemed harmful by the legislature. 

Based on these findings, the court upheld the statute.