Mixed decisions in
gay therapy ban suits
by Lisa Keen
Two federal judges in California issued differing decisions this week on the state's new gay conversion therapy law, setting up the likelihood that the 9th U.S. Circuit Court of Appeals will take up the matter.
The law, which bans state licensed mental health professionals from engaging in reparative or conversion therapy with minors, was signed by Governor Jerry Brown earlier this year and goes into effect January 1.
In the latest development, U.S. District Court Judge Kimberly Mueller in Sacramento issued an order Tuesday, December 4 denying a request for a preliminary injunction to stop the new law from taking effect. The order came one day after another federal judge in the same court issued an injunction against the same law in a different lawsuit, brought by two therapists and an adult who went through reparative therapy and is working toward a career with such therapy.
Monday's decision, however, applies only to the three plaintiffs in the case.
Shannon Minter, legal director for the National Center for Lesbian Rights, said Tuesday night that the plaintiffs who were denied the injunction filed an immediate appeal to the 9th Circuit. He said he feels confident the state's attorney general will appeal the limited injunction in the second lawsuit and that the 9th Circuit will likely consolidate the appeals and address them on an expedited basis.
Minter, who represented Equality California in its effort to intervene in the cases to defend the new law, said he expects the new law will likely take effect January 1, even though the state will not be able to enforce it against the three plaintiffs.
The law, SB 1172, signed by Brown in September, prohibits state licensed mental health professionals from administering any "sexual orientation change effort" or "reparative" therapy to a person under 18 years of age.
U.S. District Court Judge William Shubb issued the preliminary injunction Monday in Welch v. Brown, a lawsuit on behalf of the three plaintiffs. Shubb, an appointee of President George H.W. Bush, said he believes the therapists' First Amendment rights could be violated by the law.
But Mueller, an Obama appointee, said Liberty Counsel, the group pressing the case to stop the new law from taking effect, was "not likely to prevail on the merits" of their First Amendment challenge to the law, and thus did not qualify for a preliminary injunction in the other case.
Liberty Counsel is a legal group that promotes the exercise of religious freedoms in political and legal arenas. The identified plaintiffs in its case, Pickup v. Brown, were four licensed mental health professionals, including the notorious reparative therapy promoter Joseph Nicolosi, as well as lesser known David Pickup, Christopher Rosik, and Robert Vazzo. Plaintiffs also included the National Association for Research and Therapy of Homosexuality, a Christian counselors group, and two "Jack and Jane Doe" plaintiff couples on behalf of two "John Doe" minors.
Mueller, citing the state's role in regulating the medical profession, said the plaintiffs have not demonstrated that therapy is "expressive speech" within the meaning of the First Amendment.
"Nothing in [the new law] prevents a therapist from mentioning the existence of [reparative therapies], recommending a book on [such therapies], or recommending [such] treatment by another unlicensed person such as a religious figure," said Mueller. She said the law does not bar parents from seeking such therapy through persons other than state-licensed mental health professionals and "does not impede parents' religious or moral convictions" because it proscribes reparative therapies "only as performed by state-licensed mental health professionals."
A number of LGBT organizations were involved in passing the new law and filed briefs in the lawsuit, including EQCA, NCLR, and Lambda Legal Defense and Education Fund.
Mueller granted EQCA's request to participate as an intervening party in the lawsuit, to defend the law, along with state Attorney General Kamala Harris.
Brown signed SB 1172 after it was passed by the legislature, becoming the first-of-its-kind law in the country. In separate actions, as reported last week, Representative Jackie Speier (D-San Mateo) filed a similar resolution in Congress. And the American Civil Liberties Union filed a lawsuit in federal court in New Jersey last week, seeking to hold a reparative therapy group liable for consumer fraud.