Filed under: Conversion therapy cases
Legislators in New York have introduced a bill this week to ban so-called “conversion therapy” for LGBT people. California and New Jersey have also taken up the issue in recent months. Conversion therapy is widely discredited and considered to be ineffective. In fact, a noted psychiatrist who undertook a controversial study purporting to show that the therapy is effective has recently rejected his past work and has issued an apology to the LGBT community. And just last week, a former leader of the “ex-gay” movement, a group of people who claim to have “overcome” their sexual orientation, has renounced his past beliefs in the efficacy of conversion therapy.
Huffington Post reports that New York’s legislation is based on California’s ban. That law is currently being reviewed by federal courts, where proponents of conversion therapy are arguing that it is a form of speech, which should be constitutionally protected. The legal challenge to California’s ban is not affecting the chances of passage in New York:
Despite the unresolved legal challenge, two New York state lawmakers from New York City, Sen. Michael Gianaris and Sen. Deborah Glick, both progressive Democrats, said the time was right to propose a ban.
“There are often challenges to any manner of legislation that is protecting of the LGBT community and you can’t sit on your hands and wait until things get resolved somewhere else,” said Glick, who became the first openly gay legislator in New York in 1990.
But the challengers of the ban may have an uphill battle if the legislature passes it: the Ninth Circuit panel taking up the challenge to California’s ban in its preliminary stages seemed skeptical that the law is anything more than a permitted regulation of the medical profession, and the panel seemed somewhat dubious about the free speech claims raised. And in New Jersey, even the state’s Republican governor, who may seek the party’s nomination for president in 2016, has said he opposes conversion therapy and believes sexual orientation is determined at birth. It’s hard to imagine New York would be any more accepting of conversion therapy, and it seems unlikely that the Second Circuit (which is where any federal court challenge to New York’s proposed ban would ultimately end up) would be inclined to strike down the ban. In Edith Windsor’s challenge to Section 3 of DOMA, the Second Circuit issued an opinion in favor of Windsor.
The bill was introduced by the New York senate’s only openly gay lawmaker.
Ninth Circuit Court of Appeals hears challenge to California’s ban on conversion therapy for LGBT youths
By Scottie Thomaston
Yesterday, the Ninth Circuit Court of Appeals heard arguments in cases testing the constitutionality of California’s recently-enacted ban on so called “conversion therapy” for LGBT youths. The district court judges in the two cases issued opposing rulings:
One refused to block the law after ruling the plaintiffs were unlikely to prove the prohibition unfairly tramples on their civil rights and should therefore be overturned. The other said he found the First Amendment issues presented by the ban to be compelling and ordered the state to temporarily exempt the three people named in the case before him.
Those are challenged by a three-judge panel for the Ninth Circuit, consisting of Chief Judge Alex Kozinski, Susan Graber, and Morgan Christen. Kozinski is an appointee of President Ronald Reagan, but he is not considered to be a social conservative. Graber and Christen are appointees of Presidents Clinton and Obama, respectively.
Post-argument reports suggested that the judges on the panel struggled to determine whether the ban should be viewed as speech or as simply a legislative regulation of the medical profession that is constitutionally permissible:
During nearly two hours of argument before a packed courtroom, attorneys for the therapists argued that the law violates free speech and religious rights. But the judges seemed likely to hold that the state has broad powers to regulate medical care — even if it’s exclusively based on talking — when it’s provided to minors.
“That really is the pivot point, whether this is speech at all or treatment,” Judge Morgan Christen told Mathew Staver of Liberty Counsel.
“Adults can get the counseling they wish,” Chief Judge Alex Kozinski added. “There’s no prohibition to that.”
The judges appeared be wrestling with how to get there, though, and lawyers on both sides struggled to answer their questions plainly. Deputy attorney general Alexandra Robert Gordon had trouble identifying empirical evidence of harm caused by so-called conversion therapy, while Kevin Snider of the Pacific Justice Institute likewise couldn’t point to proof that it actually works.
The cases reached the court on appeal at the beginning stages of the litigation: the Ninth Circuit will decide whether the preliminary injunction barring enforcement of the law against the named plaintiffs will stay in place. The answer to the question of whether the law attempts to regulate protected speech or whether it only regulates aspects of the medical question will likely have a huge impact on how the case proceeds. If the Ninth Circuit believes the law attempts to regulate speech that is constitutionally protected, then courts will have to scrutinize the ‘conversion therapy’ ban very carefully, making it less likely the ban would be upheld in the future. But if the court decides it’s simply a permitted regulation of the medical profession, it would not face a heightened level of judicial scrutiny.
There’s no way to know when a decision might come down, but the Ninth Circuit heard this challenge on an expedited schedule, making it likely they won’t take too long to issue a decision at this stage of the case.
Audio of yesterday’s oral arguments can be found here.
Preliminary injunction in case challenging California’s ban on gay ‘conversion therapy’ appealed to Ninth Circuit
By Scottie Thomaston
In dueling decisions, courts differed on whether California’s law banning so-called gay ‘conversion therapy’ could remain in place while challenges to the law proceed in court. In Pickup v. Brown, the district court judge denied the preliminary injunction sought in the case, suggesting that the challengers to the law were unlikely to prevail on the merits. This would mean that at least in the Pickup case, the law was held to remain in force pending the outcome of a final decision on the constitutionality of the act (which is being challenged on First Amendment and other grounds.)
The case has been appealed to the Ninth Circuit Court of Appeals and put on an expedited schedule given the nature of the case. The scheduling order reads:
The briefing schedule shall proceed as follows: the opening brief and excerpts of record are due not later than January 2, 2013; the answering briefs are due January 30, 2013 or 28 days after service of the opening brief, whichever is earlier; and the optional reply brief is due within 14 days after service of the answering briefs. See 9th Cir. R. 3-3(b). All parties on a side are encouraged to join in a single brief to the greatest extent practicable.
The docket number is #12-17681.
h/t Kathleen for this info