In a unanimous decision, the Ninth Circuit has ruled that California’s law banning ex-gay therapy is constitutional and does not inhibit the free speech of its purveyors. The decision resolves two different suits challenging the law, one from the Pacific Justice Institute and one from ex-gay group NARTH and the Liberty Counsel. According to the judges, the law only regulates the conduct of medical professionals — what therapy they can dispense — not their freedom of speech. Thus, they are still free to talk about sexual orientation change efforts (SOCE) therapy, just not offer it to minors:
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. [...]
We further conclude that the First Amendment does not prevent a state from regulating treatment even when that treatment is performed through speech alone. [...]
Because SB 1172 regulates only treatment, while leaving mental health providers free to discuss and recommend, or recommend against, SOCE, we conclude that any effect it may have on free speech interests is merely incidental.
The judges also addressed the claims that the ban infringes on “parents’ fundamental rights” to make medical decisions for their children. Though there is limited case law about that specific question, there is precedent about limiting what kind of medical decisions adults can make for themselves:
We are unaware of any case that specifically addresses whether a parent’s fundamental rights encompass the right to choose for a child a particular type of provider for a particular treatment that the state has deemed harmful, but courts that have considered whether patients have the right to choose specific treatments for themselves have concluded that they do not. [...]
The aforementioned cases lead us to conclude that the fundamental rights of parents do not include the right to choose a specific type of provider for a specific medical or mental health treatment that the state has reasonably deemed harmful. Therefore, SB 1172 does not infringe on the fundamental rights of parents.
The court did not rule specifically about whether ex-gay therapy is harmful, but acknowledged that the available evidence about its lack of effectiveness and potential for harm was sufficient for the legislature to have instituted the ban. An informal survey of ex-gay survivors, which was released since this case was argued, found that over 90 percent of former clients felt the treatment had a harmful impact on their lives.
This decision bodes well for the similar law just passed in New Jersey, which Liberty Counsel has also promised to challenge. Several other states, such as Massachusetts and New York, are also considering bans on the treatment for minors.
The Liberty Counsel has announced that it intends to appeal to an en banc hearing in the Ninth Circuit or will appeal to the Supreme Court. According to the group’s head, Mat Staver, the children represented in the suit “are greatly benefiting from this counseling,” including when it comes to family relations, which suggests their parents were previously rejecting them for their sexual orientation. He also reiterated his claim that their homosexuality was “caused by the likes of a Jerry Sandusky abuser.”