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."