Courts: State ban on gay conversion therapy challenged again
Religious conservatives mounted a new attack Wednesday on California’s ban on conversion therapy for gay youths, telling a federal appeals court the law violates some therapists’ religious freedom and minors’ right to privacy.
“The persons who seek this type of treatment are primarily religious people,” attorney Kevin Snider of the Pacific Justice Institute, whose clients include two mental health professionals who are also clergymen, told the Ninth U.S. Circuit Court of Appeals in San Francisco. Prohibiting the counselors from providing the therapy they consider both spiritually and medically appropriate interferes with their religious beliefs, he argued, and also infringes on minors’ right to make “intimate choices.”
The law, the first of its kind in the nation, took effect in June 2014 after the appeals court rejected a free-speech challenge by parents seeking treatment for their children and the U.S. Supreme Court denied review. It prohibits licensed therapists from engaging in “sexual orientation change efforts” with patients under 18.
Therapy can range from counseling to hypnosis, hormones and nausea-inducing drugs. National medical organizations say the therapy is deceptive and can lead to depression and suicidal impulses.
The current threejudge panel is the same one that ruled in 2013 that the law regulates conduct, not speech. That ruling did not address religious freedom or privacy, but the judges suggested Wednesday that the issues were similar.
“This statute regulates only the professional counseling relationship and nothing more,” said Judge Susan Graber, author of the 2013 ruling.
Snider argued that legislative transcripts showed that the law was targeted at religious conservatives, and thus violated a standard set by the late Justice Antonin Scalia in a 1990 ruling that said the state could regulate religious practices, like the use of peyote, as long as it did not seek to suppress a particular religion.
But Judge Morgan Christen replied that California lawmakers had made it clear “their purpose was to speak to a type of therapy that the Legislature deemed to be harmful to minors.”
Judge Alex Kozinski indicated the state, out of concern for youths drinking wine at religious ceremonies, could increase penalties for serving minors even “a tablespoon of alcohol,” as long as it was motivated by health concerns rather than religious discrimination.
Deputy Attorney General Alexandra Gordon, the state’s lawyer, noted that the law allows non-therapists, including members of the clergy, to advise youths to change their sexuality and to refer them to non-licensed counselors.
She also said past rulings have found that medical patients have “no privacy right in any particular treatment,” especially one that has been found to be harmful.