SAN FRANCISCO (CN) – A three-judge panel of the 9th Circuit grilled lawyers Wednesday on whether therapists have a free-speech right to try to change the sexual orientation of children.
Calling the law banning gay-conversion therapy “breathtakingly broad,” attorney Mathew Staver said California-licensed psychiatrists, psychologists and counselors who even discuss the possibility of using those techniques on minors risk losing their licenses. He said the state presented no evidence that the techniques harmed patients.
Passed by the California Legislature last year, SB 1172 prohibits state-licensed psychiatrists, psychologists and counselors from using sexual-orientation change therapy and other “reparative methods” on patients younger than 18. In two cases, Pickup v. Brown and Welch v. Brown, counselors, psychiatrists and their patients claimed that the law violated the First Amendment.
While a federal judge in Sacramento found that the therapy did not qualify as protected speech in the first case, a different judge granted a preliminary injunction in the latter.
During two hours of oral argument Wednesday, the 9th circuit judges grappled with anecdotal evidence of benefit and hurt on both sides, as well as the difference between speech versus treatment, and the Legislature’s right to regulate mental health professionals.
“What if the Legislature had said no electroshock for persons under 18?” Judge Susan Graber asked. “Why can’t they carve out something where they think minors aren’t mature enough to make that decision?”
Chief Judge Alex Kozinski took the argument a step further, rationalizing aloud that the state has a compelling interest in protecting children from decisions that could potentially cause them harm.
“Why can’t the Legislature say we’ve looked into it and we think it’s harmful,” he asked. “Minors can’t protect themselves. In many ways they think they want something, but we know that most minors, perhaps all minors, are really under control of their parents and we as a Legislature are going to protect them from this,”
Staver said lawmakers were trying to legislate based on ideology, and their findings of harm to children should be given little deference.
“It’s the same as saying they can ban violent video games,” Staver said. “You can’t just tell the minor they can’t receive certain kinds of information because of anecdotal evidence of harm to the minors.”
Kozinski later brought up Terasoff v. Regents of California, a 1974 California Supreme Court decision that changed the way mental health professionals are regulated after a patient confided in his psychologist about an intent to commit murder.
“I think you agree that the state can change the standards of conduct for professionals,” Kozinski said.
Kozinski also goaded Deputy District Attorney Alexandra Gordon, urging her to provide some concrete evidence that efforts to change a person’s sexual orientation causes harm.
“Even very small prohibitions on speech violate the First Amendment,” Kozinksi said. “Even when dealing with children you have to have something really compelling, and we really don’t have anything really compelling here as I see it. I mean compelling evidence. The evidence before the Legislature is weak.”
Gordon replied: “We have a lot of evidence that it’s discredited, that it’s unscientific,”
This failed to sway Kozinski, however.
“You are giving us your view,” the chief judge said. “I’d like you to point to evidence.”
After some back and forth, Gordon cited testimony from past clients that had undergone gay conversion therapy.
“Talk therapy counts as a treatment, it’s not speech,” Gordon said. “I would say it should get very little protection. The reason why it’s prohibited is because it is an incompetent, discredited, unscientific and harmful practice. The state gets to make judgments about what is a valid practice. When we give you the privilege of a license we are saying you should exercise the appropriate level of care.”
But for Graber, the question of whether the therapy counted as speech or treatment was not so simple. “How do we decide where treatment begins and ends?” she asked.
Gordon offered a distinction, saying, “How I would decide is between treatment and communication about treatment. In this case it’s somewhat clear because we know there’s a difference between describing and recommending a therapy and actually beginning to engage in a therapy.”
Kozinski also took issue with the lack of scientific data on the therapy techniques, saying the bulk of psychotherapy is steeped in opinion, rather than fact.
“You could put all of psychotherapy out of business if you use this standard of truthfulness,” he said.
“Most of the evidence of harm is anecdotal,” he added. “Most of the evidence of benefit is anecdotal.”
But Judge Morgan Christen pressed attorneys for the therapists for at least some proof of the therapy’s efficacy.
“What is your strongest evidence that some people have benefited from this type of therapy,” she asked attorney Kevin Snyder with the Pacific Justice Institute, a conservative legal group challenging the ban.
“There is not much in the record because we’re talking about a facial challenge,” Snyder replied. “One of the declarations filed in our case that says a small percentage of individuals involved in sexual orientation change efforts experienced change.”
Christen seemed shocked. “That’s your strongest evidence that this is effective?”
“We don’t have the burden of proving whether it’s effective or not effective,” he said.
“We’re not conceding we don’t have any evidence,” he added.
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