Ninth Circuit Court Upholds California’s Ban on Homosexual Cure Therapy

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Feb 4, 2014

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In 2012, California legislators enacted a ban on mental health practices that attempted to cure homosexuality in minors by subjecting patients to intensive, and often demeaning, treatment.  California Senate Bill 1172, citing the American Psychiatric Association, denounced questionably valid and quasi-scientific theories that promote homosexuality as a disease, and enacted regulations to prevent what the State considered misguided and harmful therapy designed to make gay people straight from being practiced on children under the age of 18. 

Practitioners of homosexuality conversion therapy alleged the new law violated the First Amendment right to free speech, and filed a lawsuit in 2013.  The law was upheld by the Ninth Circuit Federal Court in Pickup v Brown in August, and last week, the Court of Appeals for the Ninth Circuit declined to review the decision – effectively affirming California’s right to ban gay-to-straight therapy practiced on minors.

Challenge to Law Banning Sexual Orientation Change Therapy

The basis for the legal challenge to California’s ban on sexual conversion therapy was that the law violated constitutional speech rights of psychiatry professionals, and the right of parents to determine the upbringing of their children.  A panel of judges on the Ninth Circuit declined to overturn the law, claiming that although speech is central to therapy, California has a right to regulate the mental health profession. 

The Ninth Circuit determined that California’s bill pertained to professional conduct, not speech, and as such, the law only had to be supported by a “legitimate state interest.” Finding that the state had a legitimate interest in protecting the lives and rights of children under 18 from what it considered to be harmful maltreatment hidden under the guise of therapy, the Ninth Circuit upheld SB 1172 in late August of 2013.  Last week, the Court of Appeals in the Ninth Circuit denied to hear an appeal, effectively affirming the lower panel’s ruling that determined that the constitution does not offer unlimited protection to mental health practices. 

Regulating “Gay Cure” Therapy

The legal history of regulating the mental health profession indicates a widespread refusal to consider counseling to be speech that is protected absolutely. While mental health professionals are entitled to protection for statements they make publically, actual treatment can be regulated to prevent patients from being exposed to questionable therapeutic practices when a state has a legitimate reason to issue the regulation, and passes a law that is sufficiently specific on what type of conduct it controls.

In light of the Ninth Circuit’s refusal to extend absolute constitutional protection to homosexual conversion therapy, it seems like state laws banning the practice have legal support. The plaintiffs challenging California’s law claimed that the therapy revolved around speech, however, the Ninth Circuit looked at the ultimate goal, which was treatment, and determined that the First Amendment did not protect the practice from a legitimate state interest to regulate it. While the California ban on gay-to-straight therapy may still be challenged in the Supreme Court, for now the law draws a line between treatment and speech that allows states to regulate the mental health profession when appropriate.


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