'Gay Conversion' Therapy Is Not Protected Free Speech

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Just because a treatment is carried out through words doesn't mean it's safeguarded by the First Amendment.

ex-gay-top2.jpgA sign at a rally in Wheaton, Illinois, protesting gay conversion therapy (Andrew Ciscel/Flickr)

The government unquestionably has the power to protect children from treatments by state-licensed mental health professionals that are harmful and ineffective. Thousands, and perhaps tens of thousands, of children have been subjected to aggressive efforts by therapists to try and change their sexual orientation. Parents, learning their children are expressing attraction to the same sex, have put them in so-called "conversion" or "reparative" therapy--despite warnings by medical and mental health organizations that these practices have no scientific credibility and put youth at risk of serious harms.

It was in light of this overwhelming medical consensus that the California legislature passed SB 1172, which prohibits a mental health professional from engaging in "sexual orientation change efforts" with a patient under age 18. The bill quotes findings from groups such as the American Psychological Association that such therapy does not succeed in changing a person's sexual orientation and often causes great psychological harm.

Now some groups are challenging this law as violating the First Amendment, especially as a restriction on freedom of speech. These lawsuits miss the point: SB 1172 should be upheld. Courts, including the United States Supreme Court, long have maintained that the government may ban treatments, whether for physical or mental conditions, that are ineffective or harmful. The Food and Drug Administration, for example, has done this since 1906 for drugs and medical devices. Courts have repeatedly rejected the claim that individuals have a constitutional right to use treatments that are banned as harmful or ineffective. Above all, the government always has the power to safeguard children from physical or mental abuse.

In the case of "conversion therapy," the process is often lengthy, seeking to change a child's behavior as well as his or her gender identity, thoughts, and feelings. The treatment is based, in part, on the idea that people are gay because they are insufficiently masculine or feminine. Treatment often focuses on removing boys from the "influence" of their mothers and sisters and encouraging them to do more conventionally "masculine" things. At times, the therapy has included aversive treatments, such as the application of electric shock to the hands and genitals and nausea-inducing drugs administered simultaneously with the presentation of homoerotic stimuli.

There is no evidence that such "conversion therapy" works and significant evidence that it doesn't and that it causes real harm, such as depression and even suicide. Besides, the "treatment" assumes that being gay or lesbian is a disease to be cured, and no reputable medical or psychological organization accepts that premise.

In fact, such efforts to change sexual orientation have uniformly been condemned by the nation's most respected and prestigious health care organizations, including the American Medical Association, the American Academy of Pediatrics, the American Psychological Association, the American Counseling Association, the American Association for Marriage and Family Therapy, the American Psychiatric Association, the American Psychonalytic Association, the American School Counselor Association, and the National Association of Social Workers.

A therapist cannot treat a condition such as "female hysteria" that has long since ceased to be recognized as a psychiatric disorder.

The fact that conversion therapy is done primarily through words does not mean that it is automatically protected as speech under the First Amendment. Never have the courts treated the First Amendment as an absolute protection for speech, and indeed they have upheld many laws that restrict speech by professionals, such as doctors and lawyers. For example, the Supreme Court has said that once an attorney enters the courtroom, "whatever right to 'free speech' an attorney has is extremely circumscribed." Similarly, doctors may be sanctioned for their speech during treatment, such as when they express an incompetent or false medical opinion to a patient, or fail to provide adequate instructions or ask necessary questions.

With respect to therapists specifically, state licensing boards and courts already enforce a plethora of speech-based restrictions and requirements, including barring false, deceptive, or harmful statements. There is no First Amendment barrier to such regulations, and there is none to SB 1172. Just as a therapist cannot lawfully endanger a person with anorexia by telling her "you are too fat," or treat a condition such as "female hysteria" that has long since ceased to be recognized by modern medical authorities as a psychiatric disorder, so therapists in California cannot subject minors to dangerous practices based on scientifically false and discredited views about sexual orientation.

Contrary to the assertions of the law's opponents, SB 1172 does not prohibit anyone - including a therapist or doctor - from expressing the view that homosexual conduct is morally wrong outside the context of providing treatment to minor patients under the auspices of a state license. Nothing in the law says or even implies such a prohibition. But it does say that no mental health professional can attempt to systematically change the sexual orientation of a person under 18.

Nor do other constitutional claims against the law have any merit. Parents certainly have the constitutional right to control the upbringing of their children, but not when it involves subjecting the children to harmful and ineffective forms of treatment.

SB 1172 is groundbreaking in preventing the harms of sexual orientation change efforts. But it fits squarely within a state's well-established authority to prevent health care professionals, including therapists, from harming their patients. The ultimate question for the courts is whether the California legislature was reasonable in concluding that conversion therapy is a form of mental health treatment that is harmful and ineffective. In light of all available evidence and the conclusion of every reputable professional organization, the answer is clear.

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Erwin Chemerinsky is the dean of the UC Irvine School of Law.

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