Apparently 14 states and approximately 50 local jurisdictions have enacted bans on sexual orientation conversion therapy for minors.
List of U.S. jurisdictions banning conversion therapy - Wikipedia
These laws and ordinances have been challenged in courts, with varying outcomes. However, to date no federal circuit court has struck down a ban. The California law was quickly challenged in 2 federal courts, with one district court granting a preliminary injunction and the other denying same. These cases were consolidated by the Ninth Circuit panel, which upheld the law in 2012. You will be eager to read that decision here: FindLaw's United States Ninth Circuit case and opinions.
The en banc court and Supreme Court declined review.
It seems that most often the challenges of these laws have been primarily premised on First Amendment Free Exercise rights. But, as far as I've seen, all challenges have included arguments that such laws impermissibly infringe basic speech rights of those therapists, counsellors or others who may offer such a service. Indeed, on this front it may be genuinely difficult to determine exactly which words or messages are forbidden for providers to communicate to patients.
In any case, the Ninth Circuit addressed petitioners' Free Speech argument on the grounds that the law merely regulates "professional speech," which does not enjoy strict scrutiny from courts.
But in an entirely different case last year, National Institute of Family and Life Advocates v. Becerra, Justice Thomas discussed the issue of "professional speech," noting that the Supreme Court has not recognized "professional speech" as a separate category requiring greater deference from courts. He further elucidates the two circumstances in which the Court has allowed greater regulation of speech by professionals. Neither such circumstances would be applicable in the case of speech that might be prohibited by laws banning conversion therapy. See:
National Institute of Family and Life Advocates v. Becerra, 585 U.S. ___ (2018)
The various laws banning conversion therapy are similar but not identical. One possibly important distinction is that some laws specify therapy that is premised on the postulate that "homosexuality" and/or bisexuality is a disease. Neither such sexual orientation category is considered a mental disorder by the APA. Consequently, it can be more readily argued that the effort to "treat" or correct such a sexual orientation category would be tantamount to malpractice.
But some laws do not wade into the issue of the disease premise for conversion therapy. The following is the text of the Tampa, FL, ordinance against which a judge recently granted a preliminary injunction:
Municode Library
Justifying the preliminary injunction, the judge found that petitioners were likely to succeed in their arguments that the ordinance is unconstitutional due to it being an "overbroad" infringement on speech:
https://thinkprogress.org/wp-content/uploads/2019/01/Tampa-conversion-therapy-opinion.pdf
So my first question here is this: Does your opinion on whether such conversion therapy bans are or should be constitutional consistent with your views on the rightness or wrongness of conversion therapy?
My general opinion on the topic (as though anyone wants to know) is rather complex and nuanced. I do know that there is no scientific evidence by which to conclude that sexual orientation categories are biological categories, and that the scientific, historical and sociological evidence suggests just the contrary, i.e., that sexual orientation is a social construct. I am aware that that sentence will upset a lot of people. I also believe that it is unethical for anyone to try to involuntarily change the sexual orientation by which another person identifies. I believe that any person who is old enough to be aware of his/her sexual affinities is old enough to consent or withhold consent for any therapy concerning such sexuality.
In regard to the issue of the constitutionality of conversion therapy bans, I conclude that the case law indicates that such laws are an unconstitutional infringement of speech and should be struck down.
I do not attempt to draw any conclusion on whether the case law indicates that laws banning conversion therapy for minors violates anyone's Free Exercise rights, however, if such bans do violate anyone's Free Exercise rights, I believe that it should be the minor's Free Exercise rights that are of the utmost importance in deciding such a question.
List of U.S. jurisdictions banning conversion therapy - Wikipedia
These laws and ordinances have been challenged in courts, with varying outcomes. However, to date no federal circuit court has struck down a ban. The California law was quickly challenged in 2 federal courts, with one district court granting a preliminary injunction and the other denying same. These cases were consolidated by the Ninth Circuit panel, which upheld the law in 2012. You will be eager to read that decision here: FindLaw's United States Ninth Circuit case and opinions.
The en banc court and Supreme Court declined review.
It seems that most often the challenges of these laws have been primarily premised on First Amendment Free Exercise rights. But, as far as I've seen, all challenges have included arguments that such laws impermissibly infringe basic speech rights of those therapists, counsellors or others who may offer such a service. Indeed, on this front it may be genuinely difficult to determine exactly which words or messages are forbidden for providers to communicate to patients.
In any case, the Ninth Circuit addressed petitioners' Free Speech argument on the grounds that the law merely regulates "professional speech," which does not enjoy strict scrutiny from courts.
But in an entirely different case last year, National Institute of Family and Life Advocates v. Becerra, Justice Thomas discussed the issue of "professional speech," noting that the Supreme Court has not recognized "professional speech" as a separate category requiring greater deference from courts. He further elucidates the two circumstances in which the Court has allowed greater regulation of speech by professionals. Neither such circumstances would be applicable in the case of speech that might be prohibited by laws banning conversion therapy. See:
National Institute of Family and Life Advocates v. Becerra, 585 U.S. ___ (2018)
The various laws banning conversion therapy are similar but not identical. One possibly important distinction is that some laws specify therapy that is premised on the postulate that "homosexuality" and/or bisexuality is a disease. Neither such sexual orientation category is considered a mental disorder by the APA. Consequently, it can be more readily argued that the effort to "treat" or correct such a sexual orientation category would be tantamount to malpractice.
But some laws do not wade into the issue of the disease premise for conversion therapy. The following is the text of the Tampa, FL, ordinance against which a judge recently granted a preliminary injunction:
Sec. 14-312. - Conversion therapy prohibited.
It shall be unlawful for any provider to practice conversion therapy efforts on any individual who is a minor regardless of whether the provider receives monetary compensation in exchange for such services.
It shall be unlawful for any provider to practice conversion therapy efforts on any individual who is a minor regardless of whether the provider receives monetary compensation in exchange for such services.
Municode Library
Justifying the preliminary injunction, the judge found that petitioners were likely to succeed in their arguments that the ordinance is unconstitutional due to it being an "overbroad" infringement on speech:
https://thinkprogress.org/wp-content/uploads/2019/01/Tampa-conversion-therapy-opinion.pdf
So my first question here is this: Does your opinion on whether such conversion therapy bans are or should be constitutional consistent with your views on the rightness or wrongness of conversion therapy?
My general opinion on the topic (as though anyone wants to know) is rather complex and nuanced. I do know that there is no scientific evidence by which to conclude that sexual orientation categories are biological categories, and that the scientific, historical and sociological evidence suggests just the contrary, i.e., that sexual orientation is a social construct. I am aware that that sentence will upset a lot of people. I also believe that it is unethical for anyone to try to involuntarily change the sexual orientation by which another person identifies. I believe that any person who is old enough to be aware of his/her sexual affinities is old enough to consent or withhold consent for any therapy concerning such sexuality.
In regard to the issue of the constitutionality of conversion therapy bans, I conclude that the case law indicates that such laws are an unconstitutional infringement of speech and should be struck down.
I do not attempt to draw any conclusion on whether the case law indicates that laws banning conversion therapy for minors violates anyone's Free Exercise rights, however, if such bans do violate anyone's Free Exercise rights, I believe that it should be the minor's Free Exercise rights that are of the utmost importance in deciding such a question.
