Issue:  Vol. 48 / No. 3 / 18 January 2018

Breaking: SF files brief in federal anti-gay therapy case


City Attorney Dennis Herrera (Photo: Jane Philomen Cleland)
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San Francisco City Attorney Dennis Herrera's office filed a brief today (Wednesday, February 6) in federal court supporting the state's ban against anti-gay therapy measures targeted at youth. The city is arguing that due to San Francisco being "a refuge" for LGBT people of all ages, particularly queer youth, it has a vested interest in the litigation.

The amicus brief echoes the positions taken by California officials and Equality California, the statewide LGBT advocacy organization, that the ban against what is known as reparative therapy – disputed medical techniques billed as a way to cure people of being gay – is needed and in the public's interest.

A first-in-the-nation law banning the practice from being administered to youth under the age of 18 in the Golden State was set to go into effect January 1. But a 9th U.S. Circuit Court of Appeals panel issued an emergency order December 21 delaying its enactment pending the appeals court's review of two lawsuits challenging the law.

The lawsuit Pickup v. Brown is being litigated 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 conservative religious legal group Liberty Counsel is helping to litigate the case.

A different lawsuit, brought by two therapists and an adult who went through reparative therapy and is working toward a career with such therapy, is also being litigated. It is known as Welch v. Brown .

The 9th Circuit is scheduled to take up the matter at 9:30 a.m. April 17 in San Francisco. The panel of judges overseeing the hearing has not yet been decided.

The detractors of the law, SB 1172, argue it will have damaging impacts on the careers of those state licensed mental health professionals who engage in reparative or conversion therapy with minors. They have also argued in court that the ban would cause minors receiving such therapy "immediate and irreparable harm to their physical, emotional, and mental health."

Both Governor Jerry Brown and California Attorney General Kamala Harris are defending the ban in court. EQCA, which has been granted status as an intervening party in the two lawsuits, is being represented by the National Center for Lesbian Rights and Munger Tolles and Olson LLP.

The city attorney's friend-of-the-court filing contends that anti-gay therapy procedures are causing harm by communicating there is "something wrong" with being LGBT. The brief also argues that such treatments undermine local efforts to combat anti-gay discrimination.

"Research shows a strong correlation between sexual orientation discrimination and negative health outcomes such as anxiety disorders, other mood disorders, risky behavior, and suicide attempts," states the city's 26-page brief. "At its most extreme, discrimination can take the form of bullying and hate crimes. As a local government and health care provider, San Francisco must expend its limited resources to respond to these harms."

The city also argues that there is no legal reasoning for the appellate justices to rule that reparative therapy is protected under the First Amendment as "expressive speech," as the plaintiffs in the case suggest. Instead, the court should find that such "professional conduct [is] subject to reasonable regulation," states the brief.

The ban should be seen in a similar vein as state and city prohibitions against smoking or laws requiring helmets be worn by motorcyclists, argues the city's brief.

Noting that not only do professional psychiatry groups say reparative therapy does not work, the city attorney's brief also points out that a number of so-called ex-gay organizations and leaders admit attempts to cure gay people are pointless. Allowing the practice to continue would only be harmful, argues Herrera's office.

"That message of stigma and shame is all the more powerful when it comes from a state-licensed, credentialed therapist who is in a position of authority and who, by virtue of his training, skill and experience, can be particularly effective at influencing a young person's development," states the city's brief.

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