SACRAMENTO (CN) - Hours after hearing oral argument, a federal judge temporarily blocked a California law prohibiting state-licensed counselors from practicing a therapy that purports to help gay minors become heterosexual.
Passed by the Legislature this 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.
A psychiatrist, a licensed family therapist and a patient who claimed "sexual orientation change therapy" worked for him sued the state in October, asking the court to enjoin the ban before it takes effect on Jan. 1, 2013.
In ruling late Monday, Senior U.S. District Judge William Shubb said the law "lacks content and viewpoint neutrality." He found that the plaintiffs' First Amendment rights superseded the alleged potential harm to minors.
Shubb said the ruling will apply only to the three plaintiffs.
At the Monday hearing, attorney Matthew McReynolds with the Pacific Justice Institute told Shubb that the law is unconstitutionally vague. He said his clients could be unfairly disciplined for "quite a number of specific things that the state called a parade of horribles related to change therapy."
McReynolds added: "Our clients have no idea where the line is drawn. Quite a lot of speech was swept in with SB 1172. They don't know what is prohibited, what's in and what's out."
But Deputy Attorney General Alexandra Gordon said that the methods advocated by plaintiffs Dr. Donald Welch, Dr. Anthony Duk and Aaron Bitzer are not protected speech.
"The plaintiffs are referring to sexual orientation change efforts as speech," Gordon said. "Sexual orientation change efforts are not speech. They are practices. And the state has the power and duty to regulate professional conduct."
Those practices include cognitive talk therapy, but also extend to hugging, rough-housing, and in the case of male patients, showering with their fathers. Gordon said nothing in the law bans psychiatrists from using sexual-orientation change efforts under the auspices of a church, but they cannot hold themselves out as licensed by the state while doing so. They are still allowed to refer patients to pastoral counselors.
Gordon said the law does not prohibit psychiatrists from talking about their views on homosexuality, just from prescribing an unscientific course of treatment that does not work and has been known to cause "tremendous harm."
"You can't start a course of treatment that is discredited and disavowed by every mental health organization," Gordon said. "It doesn't work and has tremendous potential for harm. But you can say anything you like. We're not telling a therapist what to say."
Chuckling, Shubb said, "You're telling them what not to say."
His ruling reflected the view that the plaintiffs' methods are protected speech. "Especially with plaintiffs in this case, it is also difficult to conclude that just because SOCE utilizing speech is a type of treatment, that the treatment can be separated from a mental health provider's viewpoint or message," Shubb wrote.
He added: "That messages about homosexuality can be inextricably intertwined with SOCE renders it likely that, along with SOCE treatment, SB 1172 bans a mental health provider from expressing his or her viewpoints about homosexuality as part of SOCE treatment."
At the hearing, Shubb asked Gordon whether the Legislature intended for licensed mental health professionals to start referring patients to unlicensed therapists.
"I think the Legislature knew that was a consequence," Gordon said.
She said later: "If a therapist says the State of California does not allow me to practice change therapy but here's someone else you can go to, perhaps people will think twice."
Shubb replied: "That's what they used to say about abortions."
"I think that's different," Gordon said. "We're not talking about scientific fact."
Shubb asked how treatment from unlicensed professionals could be less harmful to patients.
"Because when a doctor tells you that you have something wrong with you, you tend to take it more seriously than if you go to a witch doctor or a non-licensed professional," Gordon answered.
Shubb will hold a trial on the merits of the case, but he noted in his ruling that the law is unlikely to withstand strict scrutiny.
"Here, evidence that SOCE 'may' cause harm to minors based on questionable and scientifically incomplete studies that may not have included minors is unlikely to satisfy the demands of strict scrutiny," he wrote.
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