The simple answer to whether there is a First Amendment right to offer ex-gay therapy should, of course, be no. The long answer is that a California judge is going to put the idea on trial because he believes there may be unintended consequences from California’s ban on ex-gay therapy for under 18′s.
Federal Judge: Banning Ex-Gay Therapy May Violate the 1st Amendment
When earlier this year California passed a ban on exposing minors to ex-gay therapy the law was hailed as a landmark. For the first time in the US a state had made provisions to protect children from efforts to change their sexuality. However, ex-gay therapists soon brought legal suits to try and block the law from coming into effect on January 1, saying that it violates their freedom of speech and the right for parents to decide what is best for their children. Gay rights groups assumed these cases would get thrown out without much trouble. They were wrong.
Federal District Judge William Shubb, on Monday, enjoined the law from going into effect, but only where it applies to the three plaintiffs in the ex-gay therapy ban challenge — two therapists and another man who, having been subjected to the therapy when young, now wishes to become a therapist himself — because the judge found there was cause to believe that at trial, the law would not pass muster against the First Amendment.
The basis for this ruling is that, while the APA and in fact all mainstream health practitioners agree that sexual orientation change efforts are unnecessary because being homosexual is not a pathology, there has been little to no wide-scale clinical trials conducted regarding sexual orientation change efforts — therefore, he contends, that while we have plenty of stories that say this therapy is harmful, the evidence may be lacking. Therefore, banning therapists from offering sexual orientation change therapy is, essentially, a “viewpoint-based restriction.”
In effect, Shubb is arguing this comes down to a matter of a difference of opinion as to what therapy is best for some patients, and therefore the ex-gay therapy ban actually restricts ex-gay therapists from offering change therapy when they sincerely believe there is evidence enough that this therapy can be of benefit to a patient.
Such view-point restrictions must under examination pass a high threshold of government interest to be allowed to stand, and so now it will be up to the state of California to make the case that ex-gay therapy is harmful, and to argue against the free speech angle. State Attorney Gen. Kamala D. Harris is quoted as saying she will continue to “vigorously” defend the law at trial.
But, to be clear, Judge Shubb did not say ex-gay therapy isn’t harmful — by virtue of this proceeding to trial he is requiring both the state to prove that ex-gay therapy is not a valid treatment and that it can be harmful, and also ex-gay therapists to prove their treatment is a viable one.
A Second Federal Judge Refuses to Bar The Ex-Gay Therapy Ban From Going into Effect
The case is made twice as interesting because another judge this week in fact ruled against ex-gay therapists in a separate lawsuit against the new law.
U.S. District Judge Kimberly Mueller on Tuesday refused to block the ban from going into effect on January 1, saying that the Sacramento court finds it unlikely that plaintiffs will be able to prove that the ban limits their civil rights. The groups arguing to block the law — four counselors, two families, a professional organization representing ex-gay therapists and a Christian therapists group — all said that they would be liable for court action for recommending the therapy to minors, something they said violates their rights to free speech and to raise children free of government intrusion.
Muller concluded they had failed to demonstrate the merits of their case. They have immediately appealed the ruling to the 9th Circuit Court of Appeals and are asking for an emergency injunction.
With a number of Jewish men and their parents suing an ex-gay therapy clinic in New Jersey for the harm they say was caused by the therapy and, crucially, by the fact that the therapy was ultimately ineffective and therefore the clinic’s taking money for the therapy amounts to fraud, it seems that at last America finds itself ready to test ex-gay therapy’s claims. And this is why the First Amendment challenge isn’t necessarily a bad thing for gay groups.
A Chance to Clarify Ex-Gay Therapy and First Amendment Rights
While a number of gay rights groups, including the leading ex-gay therapy fighters Truth Wins Out, have said the ruling by Judge Shubb is wrong-headed and that strict scrutiny should not have been applied in this case, they also are hopeful that this provides a platform to spell out exactly the harms of ex-gay therapy and that, as in the Proposition 8 trial, they have the facts on their side and they are willing to use them.
As to the central thesis of whether ex-gay therapy is a free-speech issue, I’ve outlined before why it is not.
Put concisely, however, there is one overriding line of logic that can be established: Were it not for anti-gay discrimination there would likely be no anxiety over being gay. Homosexuality is of itself not harmful, therefore it is not a pathology. Any therapy that attempts to treat homosexuality as if it is a pathology is therefore flawed, based on bad science, and potentially fraudulent. There is an overriding government interest in protecting minors from a flawed therapy that is medically unproven, and this is perhaps the central argument we can expect to hear when this lawsuit comes to trial.
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