Updated: Judge temporarily blocks enforcement of California’s ban on ‘ex gay therapy’ against plaintiffs challenging the law
December 4, 2012
By Scottie Thomaston
California’s new law banning so-called gay ‘conversion therapy’ is facing a number of court challenges on First Amendment and other grounds. The law marks the first time that a state has banned the practice that has been deemed harmful by mainstream mental health organizations.
In one challenge, yesterday, the court granted a preliminary injunction allowing three therapists to continue the practice while the trial to determine the law’s constitutionality is ongoing. The judge writes that restrictions on the content of speech must be reviewed under strict scrutiny, the most rigorous form of judicial review, and the law is unlikely to survive that form of review.
Truth Wins Out issued a statement on the ruling:
“We are disappointed, but not deterred by the initial ruling by judge William Shubb. This is the beginning of a process that we feel confident will end in our favor. We have a powerful and incontrovertible case that reparative therapy is a dangerous practice that brazenly stands in direct opposition to standard mental health guidelines and procedures. It erroneously portrays homosexuality as a mental illness, gay people as mentally ill, and is consumer fraud by definition because its practitioners offer false hope and empty promises to their clients for a fee.”
“The idea that SB1172 is a violation of First Amendment rights is unfounded and wrongheaded. Medical and mental health professionals are held accountable for their speech and simply can’t say whatever they want if the results bring harm to their clients. For example, a doctor can’t tell a patient who is recovering from a recent heart attack to run a marathon. To do so would be to engage in speech that leads to malpractice. Similarly, a reparative therapist should not be able tell a 14 year old client that he or she is suffering from a mental illness and needs psychiatric care to transform from gay to straight. Therapists in clinical settings have always been expected to uphold professional standards and are held accountable for dangerous advice or deceptive practices that harm clients, or have the clients harm themselves.”
“Reparative therapy is social engineering with no medical basis and operates in an alternative reality. It was founded and solely based on the anti-gay prejudices of primarily deeply religious therapists who cruelly project their unscientific views onto vulnerable clients at a considerable financial price, as well as a significant cost to mental health. Rather than do what is in the best interest of their clients, such unethical ‘therapists’ routinely treat their clients as guinea pigs and have them in engage in bizarre treatment regimens that would be laughable if they weren’t so psychologically harmful.”
For these reasons, we view the temporary ruling as a speed bump in the inevitable process of protecting LGBT youth and their families from quacks. We look forward to the next round. The simple fact is, the more people learn about what reparative therapy truly is and what such therapists actually do in the clinic, the less they support it.”
The National Center for Lesbian Rights also responded:
“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.’
Importantly, the injunction currently appears to affect only three people, and it is a temporary ruling, put in place as a preliminary measure to ensure that the people challenging the law don’t face constitutional injury while the court decides the merits of the case. There has been no final ruling on the issue yet.
h/t Kathleen for this filing
Update (2:15 p.m. Eastern): BuzzFeed’s Chris Geidner points to a ruling in a second case challenging SB1172 in which a district court judge denied a request for a preliminary injunction blocking the law from going into effect. The decision, via Scribd, with a h/t to Kathleen, is below.