9th Circuit Likely to Uphold Ban on Gay ‘Conversion Therapy’
While he had tough questions for both sides of the emotional debate, Chief Judge Alex Kozinski seemed inclined to allow the state to regulate treatment of minors.
Scott Graham 2013-04-17 04:29:45 PM
SAN FRANCISCO — The U.S. Court of Appeals for the Ninth Circuit sounded ready Wednesday to uphold a state law that bans psychotherapists from trying to change minors’ sexual orientation.
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.
But the factual disputes sounded likely to give way to the state’s power to regulate the medical profession, particularly in the area of pediatric care. If legislators wanted to ban the use of electroshock therapy or psychoactive drugs on minors, Judge Susan Graber asked, “why can’t they do that?”
Staver pointed to a 2011 Supreme Court ruling that said California could not ban children from buying violent video games, but Christen didn’t seem impressed with the analogy. “That assumes this is speech, right?” she asked.
The Legislature enacted SB 1172 last August, declaring that “being lesbian, gay, or bisexual is not a disease, disorder, illness, deficiency, or shortcoming” that requires curing. Under the law, “any practices” that seek to change a minor’s sexual orientation are deemed unprofessional conduct subject to discipline.
Conversion therapy practitioners say the law unconstitutionally dictates what they can say during counseling sessions, pointing out that 10 years ago in Conant v. Walters the Ninth Circuit ruled that the government can’t discipline doctors for recommending medical use of marijuana,
U.S. District Judge William Shubb of Sacramento struck down the law last fall, but U.S. District Judge Kimberly Mueller, also of Sacramento, upheld it. Those two rulings, Welch v. Brown and Pickup v. Brown, were before the Ninth Circuit on Wednesday.
Kozinski, who was a member of the Conant panel, had tough questions for deputy AG Gordon. Armed with a stack of paper a foot-and-a-half high, he challenged her to point to compelling evidence of harm caused by conversion therapy. “We don’t really have anything compelling here, as I see it,” he told her.
Gordon told Kozinski that conversion therapy is ineffective and scientifically discredited.
“You’re giving us your view,” Kozinski said. “I would like you to point to evidence.”
“Fine,” Gordon fumed, citing specific legislative findings.
“That’s not evidence, that’s the Legislature speaking,” Kozinski pressed. “Point me to the one piece of evidence that’s compelling that this causes harm.”
Part of the problem, Gordon acknowledged, is there haven’t been many scientific studies of conversion therapy on children, because conducting them would be unethical. “When they become suicidal we’ll know for sure this is a harmful practice — happily, the law does not require that,” she said.
Graber noted that the state doesn’t have to prove compelling evidence of harm if it concludes that psychotherapy isn’t pure speech. Gordon agreed. “The question you’d really be asking is, is that a reasonable regulation?” she said.
By contrast, in the violent video game case, the state conceded the video games represented pure speech.
“You’re not making that mistake again,” needled Kozinski, who also was on the Ninth Circuit panel that was affirmed in the video game case.
But Kozinski was equally tough on Staver, pointing to an amicus curiae brief from individuals who underwent conversion therapy and described the intense emotional harm that person endured. Christen challenged Pacific Justice Institute’s Snider to point to evidence before the Legislature that conversion therapy actually helps teenagers become heterosexual.
“We don’t have the burden of proving that it’s effective or ineffective,” Snider argued.
“Just humor me,” Christen pressed. “Where is it?”
Kozinski pointed to another amicus brief, by a group of First Amendment scholars, which argued that much professional communication falls outside of constitutional protection.
“It’s really a fine line,” he said at one point. A doctor can give all kinds of advice, but “if they do something below the standard of care, furious consequences follow, even if it’s just speech.”
Staver argued that merely recommending conversion therapy would clearly be free speech under Conant, but Christen and Kozinski suggested there would be no professional consequences if mental health professionals referred clients to clergy or unlicensed therapists for the treatment.
“We can solve that for you,” Kozinski told Staver. “We can construe the statute not to cover that. What’s your next problem?”