Do ‘Conversion Therapy’ Bans Violate Free Speech?

by Spencer Case
Lawsuits say talking cures are protected speech; courts aren’t buyin it.

Supporters of clinical efforts to change sexual orientation in minors are using a novel argument in their effort to win government permission for orientation therapy: that the therapeutic speech of licensed professionals is protected by the First Amendment of the U.S. Constitution.

Several states are seeking to follow the leads of California and New Jersey, which have forbidden licensed therapists from engaging in sexual orientation change efforts (SOCE), also known as “conversion therapy,” with willing minors. Now two lawsuits are challenging the ban in the union’s most densely populated state. The plaintiffs in King v. Christie are a group of therapy providers, including the National Association for the Research and Therapy of Homosexuality (NARTH). The plaintiffs in Doe v. Christie are a 15-year-old boy and his parents who believe the ban denies him therapy he says he wants. The family has been given the fictitious last name “Doe” to protect anonymity. Liberty Counsel, a non-profit conservative advocacy group, represents the plaintiffs in both cases.

Though orientation therapy is frequently described by opponents as a shocking type of Pavlovian aversion training, in fact most sexual orientation change efforts are talking therapies by licensed professionals. Liberty Counsel to affect the orientation of their minor patients are protected speech, as contends, then the bans in New Jersey and California run afoul the U.S. Constitution. 

“I’ll be candid that it’s the thrust of our case — that it’s a violation of free speech” plaintiffs’ attorney Demetrios Stratis tells National Review Online

“Now what you’re doing, essentially, is creating a viewpoint discrimination saying this is off-limits, but other things are OK to talk about,” Stratis said. “That’s viewpoint discrimination and it’s certainly unconstitutional.”

Proponents of orientation therapy among licensed practitioners, such as the members of National Association for the Research and Therapy of Homosexuality (NARTH), one of the plaintiffs in King v. Christie, emphasize the verbal and non-coercive nature of SOCE.

“We work with clients toward their goals, you have to make that very clear,” Christopher Rosik, the president of NARTH, tells National Review Online. “You have to do a very careful assessment of client motivations and of course with minors you have to be sure there’s not a coercive element to their parents’ bringing them in.”

Rosik, who works as a licensed therapist in Fresno, California, added that he turns away most prospective SOCE patients  after the initial assessment.

“I will talk to the parents and say, ‘You know, this child is not really interested in this, and so it’s not going to be beneficial,’ and so then I work with the parent,” he said. “I don’t then coerce the child and do all sorts of things that are often claimed by activists in this area who oppose the practice.”

Even so, mainstream health organizations emphatically reject the therapy as an illegitimate practice. A 1997 American Psychological Association (APA) resolution rejected attempts to stigmatize homosexuality and therapeutic attempts to “correct” it. A 2009 report of the APA Task Force on Appropriate Therapeutic Responses to Homosexuality likewise rejects change efforts in favor of “affirming approaches.”

Rosik has argued that the APA is ideologically biased on the issue, and the studies that appear to show that orientation therapy is ineffective or harmful contain serious methodological flaws. For instance, many lump therapies by licensed professionals together with efforts by unlicensed clergy, which makes it harder to draw conclusions about the efficacy of professional therapy.

Rosik conceded that he is aware of no major studies supporting the efficacy of SOCE, but he said hostility to the practice has presented formidable obstacles to doing proper studies.

(Update: Rosik contacted National Review Online to clarify his position. What he meant to say is that there have been no major recent studies revealing SOCE efficacy, but that there are no recent studies revealing SOCE efficacy. He believes older studies have shown that SOCE can be effective and that the APA has ignored them. He sent along this 2009 NARTH response to APA criticism which relies on older studies. The medical establishment quickly fired back, noting that the response was not properly peer-reviewed and offered no new evidence. Here is a typical example of criticism of the NARTH response).   

So far, judges have not found the argument convincing. U.S. District Court Judge Freda Wolfson, who ruled against Liberty Counsel and the King v. Christie plaintiffs at the district level, denied the New Jersey ban regulated speech “in any constitutionally protected form.”

A similar lawsuit against California’s ban on change therapy, Pickup v. Brown, also failed to persuade the justices of the 9th Circuit Court of Appeals that the ban infringes First Amendment rights. The court noted that doctors are regularly held liable for dispensing negligent medical advice to patients, and contended that purely verbal efforts to change orientation could be regulated on similar grounds.

“Senate Bill 1172 [which bans therapeutic efforts to change orientation] regulates conduct,” the Aug. 29, 2013 decision says. “It bans a form of medical treatment for minors; it does nothing to prevent licensed therapists from discussing the pros and cons of SOCE [sexual orientation change efforts] with their patients. Senate Bill 1172 merely prohibits licensed mental health providers from engaging in SOCE with minors.”

In January, the 9th Circuit Court of Appeals reaffirmed its earlier decision in favor of the defendants. The plaintiffs appealed the decision to the highest court in the land, but in June the Supreme Court declined to hear the case.

Nonetheless, opponents of SOCE bans may find a glimmer of hope in the dissent of three circuit judges, Diarmuid O’Scannlain, Carlos T. Bea, and Sandra S. Ikuta, from the January SOCE decision.

 “May the legislature avoid First Amendment judicial scrutiny by defining disfavored talk as ‘conduct’?” they ask in the dissent. “That is what these cases are really about.”

They added, “By labeling [SOCE] as “conduct,” the panel’s opinion has entirely exempted such regulation from the First Amendment.”

The 3rd Circuit Court of Appeals began hearing arguments for King v. Christie last week. Doe v. Christie is expected to be heard by a district court soon. If either of the suits results in a circuit level judgment favorable to the plaintiffs, the Supreme Court will likely hear the case. 

Lawmakers in other states, including Florida, Virginia, Pennsylvania, New York, Massachusetts, Ohio, and Minnesota, are pushing bills to impose similar bans. 

— Spencer Case is a philosophy graduate student at the University of Colorado. He is a U.S. Army veteran of Iraq and Afghanistan and an Egypt Fulbright alumnus.