Federal Judge Blocks California Ban on ‘Ex-Gay’ Therapy for Minors

A federal judge has placed a block on California's recently passed SB 1172, which bans harmful "ex-gay" therapy for minors but has limited his order to three people — "psychiatrist Anthony Duk, marriage and family therapist Donald Welch, and Aaron Bitzer, a former patient who is studying to become a counselor who specializes in clients who are unhappy being gay" — until a trial can be held on the merits of their challenge.

ShubbThe AP reports:

U.S. District Court Judge William Shubb (right) made a decision just hours after a hearing on the issue, ruling that the First Amendment rights of psychiatrists, psychologists and other mental health professionals who engage in "reparative" or "conversion" therapy outweigh concern that the practice poses a danger to young people.

"Even if SB 1172 is characterized as primarily aimed at regulating conduct, it also extends to forms of (conversion therapy) that utilize speech and, at a minimum, regulates conduct that has an incidental effect on speech," Shubb wrote.

The judge also disputed the California Legislature's finding that trying to change young people's sexual orientation puts them at risk for suicide or depression, saying it was based on "questionable and scientifically incomplete studies."

MinterNCLR Legal Director Shannon Minter, Esq. released a statement in response to Shubb's ruling:

“We are disappointed by the ruling but very pleased that the temporary delay in implementing this important law applies only to the three plaintiffs who brought this lawsuit. The judge stressed that he was willing to issue the ruling in part because it is temporary and applies only to three individuals. We are confident that as the case progresses, it will be clear to the court that this law is fundamentally no different than many other laws that regulate health care professionals to protect patients. That is especially important in this case because the harms to minors are so serious, including suicide and severe depression. Every leading medical and mental health organization in the country has rejected these practices and warned that they are not only completely ineffective, but dangerous. California did the right thing by enacting this law, and we are confident the courts will find that it is not only constitutional, but vitally necessary. It is heartbreaking to think of the terrible damage that has been done to so many LGBT youth and their families, and of the lives that have been lost or destroyed because of these discredited practices.

We applaud Senator Ted Liu, the bill’s author, lead sponsor Equality California, the California Legislature, and Governor Brown for protecting these young people and their families. Governor Brown’s statement when he signed this bill is right on target: ‘This bill bans non-scientific 'therapies' that have driven young people to depression and suicide. These practices have no basis in science or medicine and they will now be relegated to the dustbin of quackery.’”

The law, which was passed on September 29, goes into effect on January 1, 2013.

Comments

  1. Javier says

    Judge Schubb is correct. The law overreaches by trying to make a particular view about sexual orientation illegal. People have a right to pursue psychological therapy that others think is unsound or politically distasteful, especially if a particular therapy has a religious component. Moreover, parents have a right to inculcate their religious values in their children about particular sexual behavior, even if some people disagree about those values. Certainly, this therapy is controversial and no longer the mainstream practice among therapists,but there is a significant minority of therapist that believe in its efficacy.The government should not be used to make a particular minority view illegal.

  2. Philip Wester says

    Prop 8 goes into effect, federal judges block gay people from marrying until law can be heard. Anti-ex-gay therapy law goes into affect… federal judge blocks law enforcement from stopping 3 specific people from practicing ex-gay therapy.

    What?

  3. Gast says

    @JAVIER So the law overreaches, but your religious views do not? are you perhaps able to discern the hypocrisy there? This law is not about religion, or freedom of speech, those are poor excuses and thus make for poor defenses. This law is about protecting a vulnerable subset of people who are at high risk of being abused.

  4. Javier says

    Gast, since most people and parents seeking such therapy and most such therapists who believe in such therapy are of a particular religious orientation, the law certainly has a disparate impact on a particular religious viewpoint. The First Amendment places religion above just about every other right, and I am glad it does. Moreover, even absent the religious argument, parents do have a right to seek therapy for their children that others find distasteful, ineffective, or detrimental to self-esteem. It’s called opinion, and conservative parents a right to their own too.

  5. mike8787 says

    @Javier: The law does not prohibit consenting adults from taking part in this therapy. It prevents parents from forcing their children into such therapy.

    This federal judge’s holding fails under a variety of SCOTUS precedent on privacy and child rights, including Parham, which stated the children may be institutionalized against their will based on parental consent AND a finding that the placement was appropriate by a neutral factfinding mental health professional. Doctors supporting discredited medical science would almost certainly not be considered a neutral factfinder by SCOTUS.

    This isn’t about removing liberty rights, but preventing parents from damaging their children with junk science. The court has long upheld that the state, as parens patriae, has the power to intervene over parents liberty interest in the care, custody, and control of their children where parental behavior violates an important state interest in keeping children safe. This is another one of those instances.

  6. Caliban says

    Javier, there are limits on parents’ rights to substitute religion for medical treatment. People who are adherents of anti-science “faith healing” religions have gone to jail for denying their children access to medicine. At its heart “ex-gay” therapy is based in religion, a form of faith-healing, and if that therapy is found to be harmful there are legal precedents for banning it.

    Adults can do all the snake-handling they want as part of their religion but you’d better believe the law will step in if they allow their minor children to be bitten by poisonous snakes. Ex-gay therapy is no less toxic.

  7. Steve says

    This isn’t a free speech issue any way whatsoever. It didn’t make a point of view illegal, but a dangerous and harmful psychological treatment. They can still say things, just not treat people. And technically it’s only minors, so they can still mess up adults.

  8. Gast says

    “The First Amendment places religion above just about every other right”

    That’s a false statement. While this Country history is linked to prosecution of religion. This is not the basis for applying the First Amendment, and I’m glad it is not.

  9. Francis says

    Javier is a right-winger who said he identifies with the religious community more than the gay community. Ignore him.

    This decision is so blatantly biased, and blatantly incorrect, that honestly, I’m not too concerned yet. I’m not overly concerned. I expect this decision to be overruled. It’s pretty clear that Judge Shubb believes ex-gay therapy to be legitimate to a particular degree, although, he has no basis to believe as such. There is ABSOLUTELY NO evidence ex-gay “therapy” actually works. It has NEVER been medically cleared, so to say that there are “questionable studies” regarding the effectiveness of ex-gay lies is completely incorrect because there are no studies that can definitively show ex-gay therapy actually exists, that people can change their sexuality, and most of the former main leaders of the ex-gay movement are again gay or admitting they haven’t changed.

    What IS known is that the suicide, depression, divorce rates of ex-gays/ex-gay couples is monumental. So there are facts vs non facts. That’s what makes this not a religious freedom issue. Ex-gays are working on a belief their lies are science. Trying to jump from science to religion is just another tactic to defend the lies.

  10. Francis says

    Saying that freedom of speech is being denied to kids 18 and under who are being forced into ex-gay therapy by their parents is a joke. What freedom? Religious freedom? I thought this was about medicine, Javier? Now it’s about religion. These kids don’t have any freedom. Most are being forced against their will to enter these programs.

    “The First Amendment rights of psychiatrists, psychologists and other mental health professionals…outweigh concern that the practice poses a danger to young people.”

    That’s what Judge Shubb said. That the first amendment rights, whatever those imagined rights are in this case, are MORE IMPORTANT that protecting kids from this therapy. He’s a senior George Bush appointee. Not surprising he made this decision.

  11. Jere says

    I just don’t what the big issue here is for the anti-gay groups. This law applies only to minors; once the kid turns 18, he or she is free to seek gay conversion therapy if they so desire. And their families are free to pressure them to do so. All this law does is prevent parents from subjecting their minor children (who have no say in the matter) to unsound medical practices. If there were doctors in CA subjecting children to leeches or blood letting to cure diseases, there would probably be a similar law to protect children from this. What’s the difference? Just let the child turn 18 and make the decision for him or herself.

  12. RyanInWyo says

    Javier, do you also believe that parents should be allowed, based upon First Amendment grounds, to withhold life-saving medical treatment from their children?

  13. says

    OOH SNAP, RYAN!

    “No, you can’t have a blood transfusion. We were just about to teach you that you don’t believe in them but you’re 7 and we haven’t gotten around to it yet. but trust us, you don’t believe in it. god wants you to die”

    totes.

  14. jomicur says

    We are fast approaching a time when EVERYTHING will be considered “free speech.” Everything. Well, everything right-wingers do. Political donations, ex-gay therapy, shooting black people, name it. And if it somehow doesn’t qualify as free speech in our Lewis Carroll judicial system, it qualifies as “freedom of religion.” And yet the right-wing continues to complain about “judicial activism.” The country is screwed.

  15. says

    Next, we’ll have judges blocking abuse, murder, etc. laws because they oppress abusers’, murderers’, etc. first amendment rights. I doubt I’m going out on a limb when I call this judge a bigot!

  16. BETTY says

    Javier: do you and your congregation still heal wounds with leaches? Do you still think we should drill a hole in the head of a mentally impaired person to “let the demons out”? It’s 2012, not 1712.

    “The government should not be used to make a particular minority view illegal.” Hmmm, pretty funny Javier as that’s exactly what the conservative, religious right have been successfully doing to keep equal rights away from gay people!

  17. anon says

    This is largely a procedural issue for the court. There was no ruling on the merits. The motion is based on the idea that the therapists will lose all their business and thus suffer needlessly in the event the law is struck down. They do not have to show that the the law is likely to get shut down only likely that they will suffer irreparable harm.

    Where the first amendment comes in is a second ruling that essentially says that the law is likely exercising prior restraint, which is illegal under the first amendment. You can’t pass a law that says it’s illegal to criticize the govt. in newspaper articles and then tie up the case in the court system. During the months of litigation, you would be exercising prior restraint against the newspaper if the law was allowed to be enforced. Thus, even if the court was to strike down the law eventually, the effect would have been a muzzling of free speech.

    The fact that being gay is not a disease makes this a very dicey affair. Since being gay is not a disease, there are no “medical” procedures for changing orientation, ie, no “cure” or “treatment”. This means that any “ex-gay therapy” or whatever you want to call it, is not a medical procedure and as such, is probably not subject to regulation by state authorities. Essentially, it regulates what “opinions” people are allowed to have, which violates the first amendment. What could be regulated would be any “therapy” that involves physical contact, but again, very hard to parse.

  18. Kyle says

    I went through this reperative therapy process. Forced out of my will by my parents, like most kids our. It is mental and brutal torture. I still deal with the side effects today. Most children become damaged and don’t have any say in doing it or not. All gay rights groups need to join forces in combating these programs. They are hurting our gay youth.

  19. says

    Well said Andrew.

    It’s not a defeat and we need to keep fighting this….for those gay children who are crying right now because they don’t have a voice. We as adult LGBT need to fight this battle (in courts and in public) for them, because they are being abused emotionally.

  20. Diogenes Arktos says

    @Francis: be careful of your absolutes – homosexuality was delisted as a mental illness only in 1973. while there was enough gay-friendly research from at least the 1960s to justify that change, there had been plenty of anti-gay research too. For example, use of electro-shock therapy to cure homosexuals.

    @Jere – it’s precisely because parents want to force their minor children into abuse that we have an issue with homophobes. They commonly operate from a principle that gays recruit or molest children to make them gay. They want to deal with the red herring of a child being gay rather than deal with the issue of molestation, which could be very embarrassing given that most molestees know their molestor(s).

  21. Diogenes Arktos says

    @Javier: Once upon a time – but not in a land of make-believe – battering and raping children was acceptable practice, sanctioned by the Christian church. It’s time that ex-gay therapy be recognized for what it is.

  22. Matt says

    Javier,
    While parents have a right to their religious beliefs, all of our constitutional rights rest on our rights to our own thoughts and feelings. Whether you are 2 years old, 20 or 200, you have a right to your own beliefs, thoughts and emotions. If a mind-control machine were possible, would it be ok for parents to use it to force their children to accept their religious beliefs or political beliefs? I believe absolutely not, and I think the constitution backs that up (doesn’t matter if it doesn’t, the constitution is very incomplete in protecting rights).
    Protecting children from dangerous behavior (such as unsafe sex, drug use, etc.) is different from trying to take away their right to their thoughts and feelings and turn them into a robot or doll. Even with legitimate illnesses such as depression, the parents right to force treatment should be limited to helping the child function at age appropriate levels-safely moving towards independence, not forcing them to think like they do. So it may be ok to force a child not to use drugs, but not to coerce them into believing drugs are bad or demanding that they believe in prohibition.

    That said, I do believe that consenting minors should be able to have access to the “therapy,” as ridiculous as it is, provided there are safety checks in place. Minors also have a right to their religious beliefs and to attempt to change their own thoughts and feelings if they choose to. Coercion in this matter, however, would be a clear violation of a child’s rights at any age.

    Matt

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