Late last week, I wrote an article that caused a bit of a furious reaction in social-justice Twitter. Activists claimed I was lying, arguing in bad faith, and/or exaggerating the effect of California’s AB 2943, a bill that purports to declare “sexual orientation change efforts” to be an “unlawful business practice.” I claimed the bill was so broad that it could even ban books.
And I’m right. It can and would. Here’s a step-by-step guide how:
First, the bill by its own terms applies to very broad categories of services and goods. Here’s the key enabling language:
1770. (a) The following unfair methods of competition and unfair or deceptive acts or practices undertaken by any person in a transaction intended to result or that results in the sale or lease of goods or services to any consumer are unlawful:
Second, a book (along with other written materials, like pamphlets or workbooks) fits within the very, very broad definition of a goods:
tangible chattels bought or leased for use primarily for personal, family, or household purposes, including certificates or coupons exchangeable for these goods, and including goods that, at the time of the sale or subsequently, are to be so affixed to real property as to become a part of real property, whether or not they are severable from the real property.
Basically, if you can buy it and move it (in other words, it’s not real estate), then it’s a good. Moreover, under the statute, “services” can include “services furnished in connection with the sale or repair of goods.” Booksellers provide “services.”
To this point, California’s statute is standard. Consumer protection acts apply broadly to goods and services, and they’re generally designed to prevent outright frauds and misrepresentations in commercial transactions. Anti-fraud statutes generally aren’t a threat to the First Amendment because consumer fraud isn’t constitutionally protected speech.
But here’s where the act gets pernicious. Scroll down through the list of dozens of prohibited acts, and you’ll come to paragraph 28, which bans: “Advertising, offering to engage in, or engaging in sexual orientation change efforts with an individual.”
Wait. What? “Sexual orientation change efforts” are in the same category as consumer fraud? So, what is a sexual-orientation-change effort? According to the bill, it means “any practices that seek to change an individual’s sexual orientation. This includes efforts to change behaviors or gender expressions, or to eliminate or reduce sexual or romantic attractions or feelings toward individuals of the same sex.” (Emphasis added.)
This definition is far, far broader than the traditional definition of so-called reparative therapy — the effort to change a person’s romantic feelings toward people of the same sex — it now includes efforts to change mere behavior. In other words, if for example, a sexually active gay man or woman sought counseling not to change their orientation but rather to become celibate, then the services and goods provided in that effort would violate this statute. If parents faced a child who was identifying as a person of the opposite sex, then services and goods making the argument that, for example, they should persist in calling their daughter “she” and withhold life-altering hormone treatment in part because most children exhibiting symptoms of gender dysphoria desist would violate this statute.
This is a dramatic infringement on First Amendment rights, rendered even more pernicious by its functional declaration of certain kinds of religious speech and argument as the equivalent of consumer fraud.
Indeed, some folks in the California legislature know what this bill does and simply don’t care. Here’s assembly member Al Muratsuchi declaring that it’s time for the faith community to “evolve with the times.”
No sir. The faith community can and should continue to provide services and goods that state its perspective. Californians can seek to rebut faith claims. They can offer competing goods and services, but they do not have the power to declare Christian arguments about sexual morality and gender identity fraudulent and attempt to banish them from the public square.
Now, I don’t think California is going to sweep through Christian bookstores looking for books by Ryan Anderson or Rosaria Butterfield. That would be too much, even for them (though I would note that the statute would empower such an action.) It’s far more likely that the recommendation or sharing of certain kinds of Christian books and other written materials would be deemed evidence of fraud and would present a core part of the case against a minister or counselor.
In addition, the law would loom over booksellers and churches, establishing a chilling effect and providing a pretext for even more secular booksellers to refrain from stocking certain Christian titles — no matter how well-reasoned, well-researched, or well-argued.
It’s time for the California legislature to come to its senses and remember the Bill of Rights. The California Assembly has passed the bill. Now it’s in the California Senate’s hands. Perhaps more reasonable minds will prevail.