Are Bans on Sexual Orientation Conversion Therapy Constitutional?

[sooda]

I've experienced it and now anyone who tries it on me could get severely injured. I think it defies the very words of Jesus the Christ, and those who use it lack any understanding or love. In some cases, it may be possible that the unloving acts of parents and teachers could contribute to it.

I don't think sexual orientation is like a switch that you can turn on or off, but comes in degrees. It is a decision that is personal. I was never Homosexual, though they accused me of it. If they hadn't been so ignorant and assinine they'd have seen that. I was married for 38 years and raised three children, but the moment I got sick, the churches turned on my like Jackals, and spiritually murdered me when I had done nothing wrong, at all !!! Myself, I am now completely a sexual, and Celibate per Matt 19:12. I am very disturbed now and will go try to calm myself.

God bless and keep you, Ellen.

 

[Nous]

Thousands of “medical treatments” have been banned in the U.S. because they have been proven to be either ineffective, or harmful, or both. This should be no different.

Where did you get that idea? Name a couple of dozen of the outlawed "medical treatments" that you are referring to. Can you name even one other type of psychotherapy or counseling that has been banned by law? I can't.

Exactly what words or communications are forbidden by the Tampa ordinance for a provider to say?

 

[Nous]

This is a question for everyone here who believes that the Tampa ordinance is constitutional:

Exactly what words or communications are forbidden by the Tampa ordinance for a provider to say?

 

[Liu]

Would you want courts to decide the constitutionality of such laws on the basis of whether they approve or disapprove of such therapy, or whether they approve or disapprove of parents consenting for therapies for their minor children?

The former - parents can do what they want with their children as long as it's not harmful.
Since so far I only heard extremely negative impressions about conversion therapy and not one person saying that it was better for them (albeit there very likely are also people who think so) it seems fairly likely to me that it could be proven to be harmful.

 

[Altfish]

They have been proved to not work and can cause harm; so yes they should be banned

 

[Salvador]

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:

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.​

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.

Parents should have the right to get their kids interested in being with the team that plays with different equipment; so then, if its their only child switching to team heterosexual, the parents could someday become grandparents.

 

[Kangaroo Feathers]

How Early Hormones Shape Gender Development
Many important psychological characteristics show sex differences, and are influenced by sex hormones at different developmental periods. We focus on the role of sex hormones in early development, particularly the differential effects of prenatal androgens on aspects of gender development. Increasing evidence confirms that prenatal androgens have facilitative effects on male-typed activity interests and engagement (including child toy preferences and adult careers), and spatial abilities, but relatively minimal effects on gender identity.

Hormones may affect girls’ interests, but not their gender identity or playmates | Penn State University
The researchers explored how prenatal exposure to androgens — hormones that are typically higher in males than in females — affected whether girls played more often with boys or girls.
They found that androgen exposure was not associated with girls spending more or less time in activities with other girls, but it was associated with an increased interest and more time spent in activities that have traditionally been thought of as masculine, like building things or playing or watching sports.


So given the above is it possible that minors/children are not developed to the point that their gender identity is not completely developed?

I'm not sure what your point is?

 

[Kangaroo Feathers]

Parents should have the right to get their kids interested in being with the team that plays with different equipment; so then, if its their only child switching to team heterosexual, the parents could someday become grandparents.

Do you think the folksy euphemisms help? Why should "Parents have the right to get their kids interested in being with the team that plays with different equipment"? Do you think parents should be able to attempt to medically alter other fundamental aspects of their child's personality?

 

[Kangaroo Feathers]

Where did you get that idea? Name a couple of dozen of the outlawed "medical treatments" that you are referring to. Can you name even one other type of psychotherapy or counseling that has been banned by law? I can't.

Exactly what words or communications are forbidden by the Tampa ordinance for a provider to say?

I'm not a lawyer, although I know that medical practices usually fall into disuse when superseded, rather than requiring legal bans. Treating patients with discredited therapies is more restricted because of malpractice laws than bans, per se. That said, I find it hard to imagine a doctor could get away with blood letting or trepanning someone without criminal charges laid.

It's also certainly the case that certain therapeutic chemicals are effectively "banned".

Saying "it's not banned outright" should not give the impression that it's necessarily ethically acceptable or legally practicable.

 

[wellwisher]

Again, here is my first question here:

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?

I believe it has to do with lobbyist from the medical industries. The current fad of infinite sexes will be a bonanza in terms of future medical needs. This is big bucks for the future. Those who anticipate this boom are taking precautions less someone thrown sand in the gears by healing the children too soon.

The analogy would be a small child begins to develop bad eating habits. If you make it impossible to treat this early, the odds are this young person will grow up to be a gold mine in terms of future medical and related industries.

Not too long ago, making fun of someone overweight became the early watered down version of the modern hate crime; 1990's. This taboo set the stage for more obesity in culture, especially among the poor. This became a boom for medical industries. Always follow the money.

 

[Kangaroo Feathers]

I believe it has to do with lobbyist from the medical industries. The current fad of infinite sexes will be a bonanza in terms of future medical needs. This is big bucks for the future. Those who anticipate this boom are taking precautions less someone thrown sand in the gears by healing the children too soon.

The analogy would be a small child begins to develop bad eating habits. If you make it impossible to treat this early, the odds are this young person will grow up to be a gold mine in terms of future medical and related industries.

Not too long ago, making fun of someone overweight became the early watered down version of the modern hate crime; 1990's. This taboo set the stage for more obesity in culture, especially among the poor. This became a boom for medical industries. Always follow the money.

Huh? What are you even talking about? How is the OP in any way relevant to your conspiracy theory about "the medical industry"?

 

[Willamena]

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.

I missed how the bans are an infringement on speech. Can you explain?

 

[Nous]

Parents should have the right to get their kids interested in being with the team that plays with different equipment; so then, if its their only child switching to team heterosexual, the parents could someday become grandparents.

(1) There is no such selfish rationale that is part of any legal precedent.

(2) Parents can become grandparents without needing to subject their minor children involuntarily to medical procedures or psychotherapies.

 

[Nous]

I missed how the bans are an infringement on speech. Can you explain?

The Tampa ordinance restricts what a provider may communicate with a patient, and what a patient may communicate with a provider.

 

[Nous]

I find it hard to imagine a doctor could get away with blood letting or trepanning someone without criminal charges laid.

Bloodletting and trepanning are different kinds of things than speaking to another person, and banning the former is a different sort of thing than banning the communication of certain otherwise lawful words or messages. Right? In fact, there is a provision of the US Constitution that proscribes the latter.

 

[Nous]

I believe it has to do with lobbyist from the medical industries. The current fad of infinite sexes will be a bonanza in terms of future medical needs. This is big bucks for the future. Those who anticipate this boom are taking precautions less someone thrown sand in the gears by healing the children too soon.

The analogy would be a small child begins to develop bad eating habits. If you make it impossible to treat this early, the odds are this young person will grow up to be a gold mine in terms of future medical and related industries.

Not too long ago, making fun of someone overweight became the early watered down version of the modern hate crime; 1990's. This taboo set the stage for more obesity in culture, especially among the poor. This became a boom for medical industries. Always follow the money.

@Kangaroo Feathers asked the questions I have, in his #31. What does "it" in your first sentence refer to?

 

[9-10ths_Penguin]

Where did you get that idea? Name a couple of dozen of the outlawed "medical treatments" that you are referring to. Can you name even one other type of psychotherapy or counseling that has been banned by law? I can't.

In the US, any treatment using a Schedule 1 narcotic has been outlawed.

Many other medical treatments are also indirectly banned by law:

- a government (e.g. a state) requires all practitioners of a discipline to be licensed, and punishes people who practice without a license.

- the regulatory body for the profession sets up a code of practice/standard of care/etc., and revokes the license of practitioners who commit major breaches of the profession's code/standards/etc. (or denies them a license in the first place).

 

[Nous]

In the US, any treatment using a Schedule 1 narcotic has been outlawed.

Yes, those Schedule I substances cannot be prescribed.

Many other medical treatments are also indirectly banned by law:

- a government (e.g. a state) requires all practitioners of a discipline to be licensed, and punishes people who practice without a license.

- the regulatory body for the profession sets up a code of practice/standard of care/etc., and revokes the license of practitioners who commit major breaches of the profession's code/standards/etc. (or denies them a license in the first place).

Name the medical treatments that are indirectly banned by these licensing regulations.

 

[fantome profane]

Where did you get that idea? Name a couple of dozen of the outlawed "medical treatments" that you are referring to. Can you name even one other type of psychotherapy or counseling that has been banned by law? I can't.

Exactly what words or communications are forbidden by the Tampa ordinance for a provider to say?

I said medical treatments. And as long as this is presented as a “therapy” I believe that those serve as precedent for banning this practice. Things like trepanning, shock therapy, lobotomies etc.

And let me point out a couple things. Often these “therapies” involved more than just speech, they can involve restraints, physical abuse, deprivation of food and water, etc.

And even if it is speech which is protected by the 1st amendment, no right is absolute, they all must be balanced.

 

[Nous]

I said medical treatments. And as long as this is presented as a “therapy” I believe that those serve as precedent for banning this practice. Things like trepanning, shock therapy, lobotomies etc.

Trepanning, shock therapy, lobotomies, etc., are different kinds of things than the talking and listening that a provider -- such as specified in the Tampa ordinance -- engages in. Such a provider as specified in the Tampa ordinance need not touch the body of the patient. The Tampa ordinance bans speech. Right?