States have recently begun to regulate a specific type of therapy variously known as sexual conversion therapy, reparative therapy or sexual orientation change efforts (“SOCE”) when such therapy is with minors under the age of 18. These therapies seek to “convert” a patient's sexual orientation from homosexual to heterosexual (never the reverse). Their goal is to “cure” homosexuality. Yet when a state essentially prohibits such therapies by law, such laws are bound to be challenged in court.

Two states have already passed such statutes with many more states considering bills that would regulate SOCE. In 2012, California enacted SB 1172 which prohibits licensed therapists from performing SOCE. New Jersey passed a very similar law a short while later, NJ A3371. In their legislative findings sections, both laws refer to various indications of disapproval of SOCE by the American Psychological Association, the American Psychiatric Association, the American School Counselor Association, the American Academy of Pediatrics, the American Medical Association Council on Scientific Affairs, the National Association of Social Workers, the American Counseling Association Governing Council, the American Psychoanalytic Association, the American Academy of Child and Adolescent Psychiatry and the Pan American Health Organization, a regional office of the World Health Organization.

Both the California and New Jersey laws declare that SOCE attempted on a minor by a mental health provider “ shall be considered unprofessional conduct and shall subject a mental health provider to discipline by the licensing entity for that mental health provider.” The laws define SOCE as practices “that seek to change an individual's sexual orientation.” They specifically include “efforts to change behaviors or gender expressions, or to eliminate or reduce sexual or romantic attractions or feelings toward individuals of the same sex.” They specifically exclude psychotherapies that “provide acceptance, support, and understanding of clients or the facilitation of clients' coping, social support, and identity exploration and development, including sexual orientation-neutral interventions to prevent or address unlawful conduct or unsafe sexual practices” assuming such therapies “do not seek to change sexual orientation.”

The constitutionality of both laws have been challenged in the federal courts by individual counselors and the National Association for Research and Therapy of Homosexuality (NARTH), an organization founded in 1992 based on a disapproval of homosexuality and a belief that it is a psychological trait that can and should be changed. Interestingly, many psychological groups filed amicus briefs supporting the constitutionality of the statutes, focusing on their findings regarding the harm of SOCE.

The major challenge to the statutes is a First Amendment one, arguing that anti-SOCE statutes regulate speech based on its viewpoint and its content. Under settled First Amendment doctrine, courts evaluate government regulations of speech that discriminate on viewpoint and content with the strictest of scrutiny. Government regulations subjected to strict scrutiny rarely survive a constitutional challenge: the standard demands that the government have a compelling governmental interest and that the regulation is narrowly tailored to accomplish its goals. The underlying notion is that in a democracy there should be open and robust expression — a concept sometimes known as the “marketplace of ideas” — and the government should not prohibit certain ideas from being expressed. There are well-established exceptions (for example, obscenity) and some content-based government regulations can survive strict scrutiny (for example, when national security as a compelling government interest). The legislative drafters of the California and New Jersey statutes seemingly anticipated the First Amendment challenge; the statutes include in their findings that the state “has a compelling interest in protecting the physical and psychological well-being of minors, including lesbian, gay, bisexual, and transgender youth, and in protecting its minors against exposure to serious harms caused by sexual orientation change efforts.” Moreover, the means chosen to achieve this goal is seemingly narrow. Importantly, the statutes are not criminal, but definitional (“unprofessional conduct”) with a referral to the appropriate licensing entity.

But this First Amendment analysis assumes that SOCE, at least as part of “talk therapy” or psychoanalysis, is accurately categorized as “speech.” At first blush, this seems obvious: talk therapy is talking and talking is speech. But therapy is less an “exchange of ideas” than a “practice” or a “treatment.” Moreover, constitutional law has long been clear that not all talk qualifies as protected “speech,” otherwise there would be First Amendment protections for many criminal conspiracies and confessions, as well as First Amendment protection for physicians or lawyers who give negligent advice to their patients or clients. Thus, there is an argument that the California and New Jersey statutes regulating SOCE should not be analyzed under the First Amendment at all.

Upholding the constitutionality of the California statute, the Ninth Circuit in Pickup v. Brown (2014), concluded that the statute regulated conduct , even though there was an incidental effect on speech. As the court stated, the statute “ regulates only treatment, while leaving mental health providers free to discuss and recommend, or recommend against, SOCE.” Thus, a licensed mental health provider could tell a patient to consult a non-licensed provider, such as a minister, for sexual conversion therapy, but could not “do” such therapy. But to hold otherwise, the court reasoned would mean that “talk therapy” would be entitled to “special First Amendment protection” and make it “virtually immune from regulation” (p . 1231).

But this did not mean that the statute was itself immune from all First Amendment evaluation. Instead, the court determined that the statute was subject to a mere minimal scrutiny: the legislature need only have a legitimate interest and the regulation need only be rationally related to that interest. The Ninth Circuit panel easily found that the statute satisfied this low standard. Certainly the state has a legitimate interest in protecting minors. Moreover, the state could rationally rely upon the “overwhelming consensus” against SOCE by the various professional groups, including the American Psychological Association, detailed in the statute's legislative findings. That there is some disagreement about SOCE — as the very existence of the lawsuit and the NARTH organization demonstrates — was insufficient to defeat the court's finding of the state's rationality.

The Third Circuit disagreed that this low standard was the appropriate one to evaluate New Jersey's statute, but nevertheless upheld its constitutionality in its September 11, 2014 decision in King v. Christie , Governor of New Jersey. The Third Circuit rejected the possibility of any meaningful distinction between the categories of “conduct” and “speech” in the (talk) therapy context. Instead, the unanimous three judge appellate panel of the Third Circuit crafted a notion of “professional speech” as speech that occurs pursuant to the practice of a licensed profession. But the distinction between professional speech and non-professional speech may be as troublesome as the one between conduct and speech. The Third Circuit notes that professionals who practice SOCE could certainly advocate for it and can “express this viewpoint, in the form of their personal opinion, to anyone they please, including their minor clients.” When this expression of viewpoint becomes a professional “practice” might be unclear.

The Third Circuit opinion is careful not to state that professional speech is commercial speech, but does contend that the two are similar and that professional speech should be analyzed under the same standard as commercial speech. Thus, rather than the low rational-basis standard as in the Ninth Circuit, the Third Circuit applied an intermediate standard, requiring that the statute “directly advances” the government's interest in protecting clients from ineffective and/or harmful professional services, and is “not more extensive than necessary to serve that interest.” The court easily found that the statute met that standard, relying in part on the legislature's consideration of position statements and articles from the American Academy of Pediatrics, the American Psychoanalytic Association, and the American Academy of Child and Adolescent Psychiatry warning of the health risks posed by SOCE counseling.

Thus, the constitutionality of statutes prohibiting SOCE is the status quo. There was an attempt to have the Ninth Circuit opinion in Pickup v. Brown, upholding the California anti-SOCE statute, reheard by the full Ninth Circuit as en banc, rather than the three judges of the panel, but that attempt was unsuccessful. However, some judges not on the original panel dissented from the decision to decline an en banc review, and that dissenting opinion was favorably discussed by the Third Circuit when it diverged from the conclusion that SOCE was “conduct” and not speech. There was also an attempt to have the United States Supreme Court review Ninth Circuit case, but the Court denied the petition for writ of certiorari on June 30, 2014. There will most likely be a petition for writ of certiorari seeking review of the Third Circuit case, perhaps arguing that the novelty of the “professional speech” category deserves the Court's attention.

The constitutionality of the California and New Jersey statutes paves the way for other states to similarly prohibit licensed mental health providers from engaging in the practice, at least with regard to minors. But in addition to the First Amendment arguments, there are arguments based on the interference with parental constitutional rights. The California, but not New Jersey, case included parents as plaintiffs who argued that the statute infringed on their well-established substantive due process rights of “care, custody, and control” over their children; it's the same right that allows parents to make most medical decisions for their minor children. Most, but not all. The Ninth Circuit noted that even adults do not have a constitutional right to obtain a particular treatment, obtain a particular treatment from a particular provider, or obtain a particular medication. The government routinely regulates treatments, licenses professionals, and approves drugs. It would be “odd,” the court stated, “if parents had a substantive due process right to choose specific treatments for their children — treatments that reasonably have been deemed harmful by the state — but not for themselves.”

Moreover, the strategy to regulate the professions and the notion of “professional speech” leaves unlicensed providers free to practice SOCE, at least as far as the anti-SOCE statutes are concerned. But as has been long advocated, there are other legal actions, including tort actions, that could be brought against such providers by the minors they treated once the minors become adults (Gans, 1999). Even in a state without an anti-SOCE statute, it could be a very risky business to practice SOCE, whether one is licensed or not.

References

California SB 1172, codified at Cal. Bus. & Prof. Code §§ 865, 865.1 & 865.2 (West 2014).

Gans, L. A. (1999). Inverts, perverts, and converts: Sexual orientation conversion therapy & liability. Boston University Public Interest Law Journal, 8 , 219.

King v. Christie, No. 13-4429, slip op. (3 rd Cir. 2014), available at http://www2.ca3.uscourts.gov/ opinarch/134429p.pdf.

NJ A3371, codified at N.J. Stat. Ann. § 45:1-54 – 55 (West 2014)

Pickup v. Brown , 740 F.3d 1208 (9th Cir. 2014) (as amended), rehearing en banc denied, 740 F.3d 1208; cert. denied, ___ U.S. ___, 134 S. Ct. 2881 (2014).