Issue:  Vol. 48 / No. 12 / 22 March 2018

Court halts CA gay therapy ban


Governor Jerry Brown (Photo: Lydia Gonzales)
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California's groundbreaking law banning the use of reparative therapy on people younger than 18 will not go into effect on January 1. A 9th U.S. Circuit Court of Appeals panel issued an emergency order December 21 delaying enactment pending the appeals court's review of a lawsuit challenging the law.

The religious right legal group Liberty Counsel sought the emergency order after federal district Judge Kimberly Mueller ruled December 4 that a group of plaintiffs were "not likely to prevail on the merits" of their legal challenge to the law.

The underlying lawsuit is Pickup v. Brown , pressed by four mental health professionals, the National Association for Research and Therapy of Homosexuality, the American Association of Christian Counselors, and two "Jack and Jane Doe" plaintiff couples on behalf of two "John Doe" minors.

The plaintiffs' request for an emergency order argued that the John Doe minors would face "immediate and irreparable harm to their physical, emotional, and mental health," and that the mental health practitioners would suffer damage to their careers, if the law is allowed to go into effect. The request also noted that another federal judge in Sacramento granted a preliminary injunction December 3 in a similar lawsuit by a different set of plaintiffs.

"The intra-district conflict," said the Liberty Counsel motion, "creates an impossible legal quandary for the thousands of Californians affected by SB 1172," the new law.

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 was to go into effect January 1.

In a joint statement, the National Center for Lesbian Rights and Equality California, both sponsors of SB 1172, said the 9th Circuit's action "temporarily delayed the start date" of the law.

California Attorney General Kamala Harris opposed the emergency motion, as did EQCA, which has been granted status as an intervening party in the lawsuits. Represented by NCLR and Munger Tolles and Olson LLP, EQCA argued that many more young people will be harmed if the law is not allowed to take effect. The "balance of hardships and the public interest," it said, "strongly favor allowing California youth to benefit now from the crucial protections established by SB 1172."

The three-judge panel granting the emergency injunction did not discuss its reasons. The panel included Alfred Goodwin (an appointee of President Richard Nixon), Edward Leavy (Ronald Reagan), and Milan Smith (George W. Bush).

Sexual orientation change efforts, which attempt to convert people with a homosexual orientation to heterosexual, are generally referred to as "reparative therapy" or "conversion therapy." A small number of mental health care facilities promote the therapy, even though both the American Psychiatric Association and the American Psychological Association have said there is no sound evidence that it works and that there is evidence it can pose significant risks of self-destructive behavior to the client.

"Every leading medical and mental health organization has warned therapists and parents that these practices do not work and put young people at risk of serious harm, including depression and suicide," NCLR legal director Shannon Minter said in a statement.

Liberty Counsel's lawsuit argues that the new law would violate the First Amendment free speech rights of the reparative therapists, as well as several rights of parents and rights of minors to receive information.

But Mueller, in making her preliminary ruling on the case, said "nothing in [the new law] prevents a therapist from mentioning the existence of [reparative therapies" and referring potential subjects of the therapy to persons, such as clergy, who are not state-licensed.

In the joint statement, EQCA Executive Director John O'Connor pointed out, "California regulates medical providers to protect consumers from all kinds of harmful and fraudulent practices."

In another case, the American Civil Liberties Union filed a lawsuit in federal court in New Jersey, seeking to hold a reparative therapy group liable for consumer fraud.

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