As some here may be aware, the state of California recently passed legislation, known as SB 1172, prohibiting the use of so-called "conversion therapy" on minors. The purpose of this therapy is -- supposedly -- to turn gay and lesbian individuals into heterosexuals.
Naturally the Religious Right has been up in arms about this bill, which is due to take effect this coming January 1 and, having twice failed to obtain enough signatures to place a challenge to the new law on the California ballot, has filed a couple of lawsuits intending to block implementation of this legislation based upon freedom of speech and freedom of religion violations.
Both cases have had initial hearings, but with quite differing outcomes. Follow me below the squiggle and I'll show you what's been happening.
In the first case, known as Welsh vs Brown, brought by right-wing advocacy group the Pacific Justice Institute, District Court Judge William Shubb granted a temporary restraining order preventing the law from being enforced, though only against the three plaintiffs. A full hearing has not yet been conducted. So far so good, right?
Now it seems that a second case is proceeding and this time a different judge has come to a very different conclusion. In this second case, referred to as Pickup vs Brown, being brought by Liberty Counsel and NARTH (the organization once headed by the now discredited George Rekers who infamously hired a male prostitute to "carry his luggage"), Judge Kimberley Mueller has declined to issue a similar restraining order.
In her decision, Judge Mueller noted...
Here, plaintiffs have not demonstrated a likelihood of success on the merits of their claim that SB 1172 will subject mental health professionals to discipline if they merely recommend SOCE to minor patients, or discuss it with them, or even present them with literature about SOCE… [I]n contrast, the state’s insistence that the statute bars treatment only, and not the mention of SOCE or a referral to a religious counselor or out-of-state practitioner, is consistent with a fair reading of the statute itself. [...](In the quote above, the abbreviation "SOCE" stands for "Sexual Orientation Change Efforts." I have added emphasis to the final sentence.)
Courts reaching the question have found that the provision of healthcare and other forms of treatment is not expressive conduct. Given the weight of the authority on the question and the nature of the record before the court, plaintiff therapists have not shown they are likely to succeed in bearing their burden of showing that the First Amendment applies to SOCE treatment; they have not shown that the treatment, the end product of which is a change of behavior, is expressive conduct entitled to First Amendment protection.
As SOCE therapy is subject to the state’s legitimate control over the professions, SB 1172′s restrictions on therapy do not implicate fundamental rights and are not properly evaluated under strict scrutiny review, but rather under the rational basis test. SB 1172 passes the rational basis test.
Those of us who have either been subject to the sort of "treatment" that is the subject of the ban or who know people who've been subject to it are well aware that there is no valid data anywhere that demonstrates such treatment to be effective in any meaningful sense. On the contrary, all mainstream mental health organizations are on record as opposing such attempts because they are likely to subject its recipients to added stress while doing nothing to change their sexual orientation at all. In short, efforts to change an individual's sexual orientation are nothing more than abuse.
I have my own take on this issue, and it goes like this: How would we feel if parents were to take their left-handed children to a therapist in order to have turn their kids into righties? Would we find this at all appropriate? Even if it were possible, why would anyone want to try it. Although I was never subjected to attempts to change my sexual orientation, I am indeed a lefty. Fortunately neither my parents nor my teachers ever attempted (despite my absolutely atrocious handwriting) to make me right-handed.