Why It Might Be Hard to Completely Ban Gay Conversion Therapy

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Is this treatment protected speech? Two California courts disagree.

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Media Matters for America researcher Carlos Maza objected to my column about Welch v. Brown, in which federal District Judge William Shubb narrowly enjoined application of a new California law that would forbid licensed therapists from performing "Sexual Orientation Change Efforts" (SOCE), popularly known as "gay conversion therapy," on patients younger than 18. He accuses me of "lending credence to the shoddy claim that the law limits the free speech of therapists hoping to cure their patients of homosexuality."

Maza quotes a statement from Shannon Minter of the National Center for Lesbian Rights: "A doctor can't tell you that it would be good for your health to smoke a couple of packs of cigarettes a day. But if Judge Shubb's analysis were right, a doctor could not be disciplined by a medical board or sued for malpractice for voicing his or her 'opinion.' "

The question in Welch is a difficult one. Just how difficult is illustrated by a decision a day later by a different federal judge in the same district, Kimberly Mueller, to refuse a broad injunction to plaintiffs who wanted the law blocked altogether. Both opinions are attempts by conscientious judges to apply the law of the First Amendment in a new area. The differences between them illustrates an important truth about the First Amendment: The way a court characterizes the speech at issue almost always determines the result.

Judge Shubb considered the therapy offered by the plaintiffs to be pure speech, and considered the statute an attempt to censor speech based on its viewpoint. Judge Mueller, by contrast, concludes that SOCE therapy is not really speech at all, but "conduct" that involves speech. In reaching that conclusion, she relies on cases in which doctors have been disciplined for recommending and prescribing the phony cancer drug laetrile, or licensed acupuncturists were disciplined for prescribing drugs despite the conditions of their licenses.

But what if the doctor's advice doesn't involve any substance or drug? In 1996, the federal government threatened to revoke prescription licenses to any doctor who dared recommend that patients consider medical marijuana. The Ninth Circuit struck the threat down, saying it "condemns expression of a particular viewpoint, i.e., that medical marijuana would likely help a specific patient." That's not quite the same as SOCE, which a professional not only recommends but performs (the doctors weren't selling pot, just recommending it). But it does indicate that aspects of treating a patient are pure speech, protected by the First Amendment.

The question, then, becomes whether SOCE is more like recommending pot or selling laetrile. Here, both judges rely heavily on a 2009 report by a special panel set up by the American Psychological Association on the alleged benefits and risks of SOCE. After reviewing the literature on "conversion" therapy from the nineteenth century until the present, the panel concluded that SOCE is unlikely to do much to change a patient's sexual orientation.

Some patients have reported benefiting from the therapy, however, in terms of how they deal with their sexual urges; "there are individuals who perceive they have been harmed and others who perceive that they have benefited from [some types] of SOCE." The research literature is thin, the panel reported, and definite conclusions can't be drawn. Like a number of other mental-health organizations, the APA urges therapists not to offer the treatment, and patients not to seek it.

That's not quite enough evidence, Judge Shubb reasoned, for ordering psychologists disciplined for speaking to their patients. On the other hand, it is -- as Judge Mueller reasoned -- plenty of evidence for restricting "conduct."

The California statute, S.B. 1172, forbids "any practices by mental health providers that seek to change an individual's sexual orientation. This includes efforts to change behaviors or gender expressions, or to eliminate or reduce sexual or romantic attractions or feelings toward individuals of the same sex."

The legislature reported that "SOCE techniques may include aversive treatments such as electric shock or nausea inducing drugs administered simultaneously with the presentation of homoerotic stimuli."On the other hand, the legislature also noted that some SOCE is limited to "visualization, social skills training, psychoanalytic therapy, and spiritual interventions."

Shocking minor patients, or giving them nauseating drugs -- called "aversive" therapy -- isn't speech at all. It's barbaric and I see no reason a legislature couldn't or shouldn't forbid it. In fact, the APA report found a significant number of reports of harm from "aversive" therapy.

But shutting down "non-aversive" therapy might require a good deal more showing of evidence, because that is much closer to pure speech. Parts of it could easily be regulated: For example, the APA reports found that some practitioners deceive patients and their families by promising results they can't deliver. There's no question that the legislature could require the therapists to provide truthful information before getting consent for the therapy.

In addition, some "therapists" in essence imprison young people at residential camps and try to coerce sexual orientation change. No one could argue that the First Amendment protects that.

Am I saying that "non-aversive" SOCE is not harmful? No. In fact, the whole idea of changing a sexual orientation is repellent, whether done with drugs and shocks or just with words. I can't wait until it ends up on the ash-heap of history, along with sodomy laws and the Defense of Marriage Act.

That's my opinion, and the opinion of many knowledgeable people. But since it is an opinion, the First Amendment puts the burden on government before it suppresses those who disagree. Those who oppose "non-aversive" SOCE have a number of ways to fight it: Professional organizations can (and many have) advise their members against it. Publicity campaigns can warn parents and teenagers that the therapy is almost certainly ineffective and very possibly harmful. Outreach to churches and schools can spread the word that this therapy is something to stay away from.

And if the state carries its burden of proof, licensed professionals can be forbidden to provide it.

To recap, doctors who recommend cigarettes can be disciplined because we know for certain that cigarettes are harmful. SOCE, to the extent it involves nothing but speech, can't be banned until the state proves it is harmful. At some point, we will get to a trial on the merits, and a judge will weigh the evidence. It's a huge responsibility; let's hope the courts handle it well.

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Garrett Epps is a contributing writer for The Atlantic. He teaches constitutional law and creative writing for law students at the University of Baltimore, and is the author of American Epic: Reading the U.S. Constitution.

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