Second Federal Court Ruling This Week on ‘Ex-Gay’ Therapy in California Brings Differing Conclusion

Yesterday I reported that U.S. District Court William Shubb 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.

Shubb ruled 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."

Another ruling came the same day, which I didn't report on.

MuellerChris Geidner at Buzzfeed explains:

On Tuesday, however, Judge Kimberly Mueller, an Obama appointee, reached the opposite conclusion, finding that "Plaintiff therapists are not likely to prevail on the merits on their First Amendment claim."

The reasoning, primarily, revolved around what standard the court should use to resolve the claim, whether speech or conduct (or expressive conduct, which is a type of conduct that is intended to convey a message) was at issue. If speech is involved, "strict scrutiny" is applied and the state must show a compelling reason for regulating that speech.

In concluding that the plaintiffs were bringing a legitimate First Amendment claim, Shubb examined the law, shortened to "SOCE," and found "[w]hen applied to SOCE performed through 'talk therapy,' [the law] will give rise to disciplinary action solely on the basis of what the mental health provider says or the message he or she conveys."

Mueller, however, found that not only was speech not involved but that "the provision of healthcare and other forms of treatment is not expressive conduct." Specifically, she decided that the plaintiff therapists "have not shown that the treatment, the end product of which is a change of behavior, is expressive conduct entitled to First Amendment protection."

The rulings — and the appeal to the Ninth Circuit — were only in relation to requests for preliminary injunctions halting the enforcement of the new law while the underlying lawsuits can proceed.

More at Buzzfeed

Said NCLR's Kate Kendell following Tuesday's ruling: "We are confident the courts will continue to uphold this life-saving law, which simply requires licensed mental health practitioners to follow professional standards and to refrain from using practices that have no basis in science or medicine."


  1. Butch says

    Look, my master’s degree actually involved First Amendment law…but what kind of person thinks the First Amendment is more important than the mental health of a gay kid?

  2. Brian says

    Wondering if a lawyer can explain what’s going on here? From my perspective, the various opinions seem to be parsing how much speech is involved in ex-gay therapy and is therefore covered by the first amendment. This seems to this non-lawyer to be very much a sideshow. Surely there are limits on free speech in the medical professions. A doctor can’t tell a patient with a headache to take poison. A psychiatrist can’t tell a suicidal patient to jump off a bridge. It would seem to me that a court should be examining the merits of ex-gay therapy, consider that the medical associations believe it is bogus and detrimental to a patient’s mental health. and come to a conclusion. If the court believes it’s a dangerous activity, then it seems clear that it would be similar to a doctor recommending poison or suicide, which somehow rises above the first amendment.

  3. KsBrian says

    Considering I have 2 cousins who are MD’s and another who is a physicians assnt. I thought MD’s took an oath though shalt do know harm. guess that is like a lot of other oaths just a saying that is never enforced.

  4. says

    at least SHE has some common sense.

    yeah. right. the safety and well being of an at-risk child being raised by anti-gay bigots is less important than the, uh, “first amendment right” of that crackpot to inflict further harm.

    what an insult to intelligence and the judicial system.

    thank you Judge Mueller, and President Obama.

  5. Diogenes Arktos says

    @KSBrian: The issue is precisely one of harm. Just like is used to be considered harmless to batter and rape people. Except perhaps for the Religious Right.

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