SAN FRANCISCO (CN) - Legislation banning California licensed therapists and psychiatrists from practicing gay conversion therapy techniques on children is not unconstitutional, the 9th circuit ruled.
"The record demonstrates that the legislature acted rationally when it decided to protect the well-being of minors by prohibiting mental health providers from using SOCE [Sexual Orientation Change Efforts] on persons under 18," Judge Susan Graber wrote.
Passed by the California Legislature last year, SB 1172 prohibits state-licensed psychiatrists, psychologists and counselors from using sexual-ori
entation change therapy and other "reparative methods" on patients younger than 18. Practices currently used to change gay men's and lesbians thought patterns and sexual desires include cognitive talk therapy, but also extend to hugging, rough-housing, and in the case of male patients, showering with their fathers.
In two cases, Pickup v. Brown
and Welch v. Brown
, counselors, psychiatrists and their patients claimed that the law violated their free speech rights.
While a federal judge in Sacramento found that the therapy did not qualify as protected speech in the Pickup
case, a different judge granted
a preliminary injunction in Welch
In April, a panel consisting of Graber, Judge Morgan Christen and Chief Judge Alex Kozinski, grilled
Deputy District Attorney Alexandra Gordon over her "view" that the therapy techniques were unscientific and harmful. "Even very small prohibitions on speech violate the First Amendment," Kozinksi said. "Even when dealing with children you have to have something really compelling, and we really don't have anything really compelling here as I see it. I mean compelling evidence. The evidence before the Legislature is weak."
But in its Thursday ruling, the panel found the law deals solely with the conduct of state-licensed therapists and psychiatrists, which the state has the right to regulate.
"Senate Bill 1172 regulates conduct. It bans a form of medical treatment for minors; it does nothing to prevent licensed therapists from discussing the pros and cons of SOCE with their patients. Senate Bill 1172 merely prohibits licensed mental health providers from engaging in SOCE with minors," Graber wrote. "Most, if not all, medical treatment requires speech, but that fact does not give rise to a First Amendment claim when the state bans a particular treatment."
The panel also rejected the plaintiffs' arguments that the law is unconstitutionally vague and infringes on the fundamental right of parents to choose their children's medical treatment. "A reasonable person would understand the statute to prohibit only mental health treatment, including psychotherapy, that aims to alter a minor patient's sexual orientation," Graber wrote. As for parental rights, the panel found they do not include the right to choose a treatment that the state has deemed reasonably harmful.