A federal appeals court in San Francisco today grappled with questions of whether California’s ban on sexual orientation conversion therapy for youths under the age of 18 violates the free-speech rights of therapists.
“The first question is whether this is treatment or whether it is speech at all,” said 9th U.S. Circuit Judge Morgan Christen during a two-hour hearing on two challenges to the law.
The law enacted by the Legislature and signed by Gov. Jerry Brown last year is the first of its kind in the nation.
It prohibits state-licensed mental health professionals from engaging in efforts to change the sexual orientation of minors.
A three-judge panel of the appeals court took the cases under submission after hearing arguments and will issue a written ruling at a later date.
The court is considering two lawsuits in which several therapists, parents and patients claim the measure violates the constitutional First Amendment right of free speech.
Both lawsuits were filed in federal court in Sacramento but were assigned to different trial judges, and the two judges reached opposite conclusions.
One judge issued a preliminary injunction blocking enforcement of the law and the other declined to do so, saying that the law appeared likely to be found constitutional. Both rulings were appealed.
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In December, the 9th Circuit temporarily suspended implementation of the law until the appeals are decided. The law had been scheduled to go into effect on Jan. 1.
Deputy California Attorney General Alexandra Gordon, defending the law, argued that counselors’ words during therapy are not protected speech because they are a form of medical treatment, within the state’s jurisdiction to regulate through licenses.
“We’re talking about whether the state can require people using its license to be competent and specifically protect children from a harmful practice,” she told the court.
But Kevin Snider, a lawyer for two therapists and a former patient, contended that talk therapy combines free speech and treatment and said the two can’t be separated.
“We say it can be both,” he argued.
Chief Circuit Judge Alex Kozinski asked whether the courts should defer to the Legislature’s finding that conversion therapy is harmful to gay and lesbian youths.
“Why can’t the Legislature say we’ve looked into it, we think it causes harm to minors, minors can’t protect themselves and we’re allowed to protect them?” he asked.
The third judge on the panel, Susan Graber, added, “Isn’t that what the Legislature does every day—make a policy decision?”
Mathew Staver, representing several therapists and families, told the court, “This is an unprecedented regulation that would have monumental consequences for counselors.
“When a counselor counsels, the only tool they have is speech,” Staver said.
Julia Cheever, Bay City News
