Court’s sexual orientation change decision leads to more questions

Can the state of California ban mental health providers from engaging in “sexual orientation change efforts” (“SOCE”) with patients under 18 years of age? An appeals court says yes, for now.

Courtroom_United_States_CourthouseThis is the question answered by the United States Court of Appeals for the Ninth Circuit in its recent (August 29, 2013) decision in Pickup v. Brown.  In a relatively narrow, and relatively safe, decision, the court shut the door on reparative therapy with minors, at least as practiced by publicly licensed mental health practitioners.

Yet behind the private doors of family and church await broad, difficult constitutional questions.  It may turn out that what is most significant about this case is what the court did not decide.

The California statute (Senate Bill 1172) defines SOCE as “any practices by mental health providers that seek to change an individual’s sexual orientation.”  This would include efforts “to change behaviors or gender expressions, or to eliminate or reduce sexual or romantic attractions or feelings toward individuals of the same sex.”

The use of SOCE on a minor patient would be considered unprofessional conduct, subjecting the provider to discipline by the relevant licensing entity.  Left unrestricted are psychotherapies that “provide acceptance, support, and understanding of clients or the facilitation of the clients’ coping, social support, and identity exploration and development.”

In two federal district court cases—the appeals were heard together by the Ninth Circuit—the plaintiffs (SOCE practitioners, organizations that advocate SOCE, children undergoing SOCE, and the parents of children undergoing SOCE) challenged the statute’s constitutionality on several grounds:  as a violation of First Amendment rights of free speech; association, right to receive information;  and free exercise of religion; as a violation of parental due process rights; and as unconstitutionally vague and overbroad.

The plaintiffs’ primary claim was that counseling is an expressive activity; it is, in a word, speech.

Indeed, so the argument ran, communication is “the essential element” of the therapeutic process:  “The purpose of counseling is to communicate a message that will be understood by a client who wants to hear that message.”

Not only did the statute restrict pure speech, the plaintiffs argued, it failed the test of content and viewpoint neutrality because it “allows counseling that affirms same-sex relations, behavior or identity.”  The law communicated a message, but not one that SOCE partisans wanted to hear:  “the state-approved message that same-sex attractions are only to be accepted, understood and supported.”

Only a showing of harm, it was argued, could justify such tampering with personal freedoms; and because “there is no empirical evidence that SOCE causes harm to minors” (the quotation and emphasis belong to the plaintiffs), the ban was fatally flawed.  (To be clear, the plaintiff practitioners used only non-aversive therapeutic techniques—thus, no testosterone injections, electric shock, or psychosurgery.)

The Ninth Circuit turned the plaintiffs’ argument on its head.  The gist of the opinion is that SB 1172 is a regulation of professional conduct and, as such, does not violate the free speech rights of SOCE practitioners or minor patients.

The “talking cure” is more than just talk; the spoken therapeutic word, the court maintained, is first and foremost a mechanism used to deliver mental health treatment.  It is conduct that is not immune from ordinary state regulation in the interest of public health and safety.

The legislature had deemed the conduct harmful to minors, and that was more than good enough to satisfy the rational basis review to which licensing regulations are subject.  (Indeed, harm to a child would satisfy any level of review.)

The court made quick, if not entirely credible, work of the plaintiffs’ other claims.  The “limited reach” of SB 1172 distinguished it from more intrusive regulation of the therapeutic relationship.

Of course, the plaintiffs would contend that what was truly limited was not the reach of the statute but the court’s cramped reading of constitutional rights.  For instance, the court defined the parental right at stake as “the right to choose a specific type of provider for a specific medical or mental health treatment that the state has reasonably deemed harmful.”

The court applauded itself for treading lightly.  It pointed out that the decision does not prevent mental health providers from communicating with the public about SOCE; from expressing their views to patients, whether children or adults, about SOCE, homosexuality, or any other topic;

from recommending SOCE to patients, whether children or adults; from administering SOCE to any person who is 18 years of age or older; or from referring minors to unlicensed counselors, such as religious leaders.

Nor does the ruling prohibit unlicensed providers, such as religious leaders, from administering SOCE to children or adults.  And, obviously, it says nothing about parental communications and administrations.

But is the court’s constitutional complacency so easily justified?

The case comes down to the question of harm.  The state met its legal burden, after all, because it had reasonably deemed SOCE harmful to children.

Yet surely the state also has the authority to protect children from private injuries.  If SOCE is per se harmful, could a parent who subjects his or her child to reparative therapy be guilty of child abuse?  (The federal Child Abuse Prevention and Treatment Act defines abuse to include “serious emotional harm,” as do almost all state child protection statutes.)

If SOCE is harmful, are homophobic teachings—by parents, by religious mentors—a legitimate object of state regulation?  There is no licensing system, no professional code of ethics, for the rest of us.  Should this not be cause for greater concern?

Harm is a more mercurial standard than courts like to admit.

In Pickup v. Brown, the Ninth Circuit said that the California state legislature acted rationally to protect the well-being of minors.  Pointing to a familiar litany of reports and studies, the court declared an “overwhelming consensus” that SOCE is harmful.

But it is not unfair to ask whether this consensus is as much a matter of social policy as it is of scientific proof, as much a matter of moral disapproval as it is about empirically verifiable injury.  (Even the harm of physical injury is open to debate.  Spanking?)

Put with more tautological vigor, harm is what we as a society think is harmful.  Is racism harmful?  We have decided it is.

That is, we have decided it is repugnant to our political and social order and, to the extent allowed by our constitutional commitments, we will not tolerate it.

But it was not always thus.  Like the concept of illness (it was no small matter to the Ninth Circuit that homosexuality is no longer treated by the mental health community as a disease to be cured, even by talk), harm is a concept that embraces and enforces cultural values; and like other norms, it is subject to the tumult of cultural change.  Is homophobia harmful?  We are deciding it is.

Courts can, and should, wrap these moral claims in legal raiment.

They can describe conduct we don’t like as, say, discrimination or harassment or abuse.  They can declare an “overwhelming consensus” that SOCE is harmful.  But perhaps what we really mean by all of this, and what we ought to state unapologetically, is that such conduct is just plain wrong.

Jeffrey Shulman teaches at Georgetown Law. His book The Constitutional Parent: Rights, Responsibilities, and the Enfranchisement of the Child is forthcoming from Yale University Press.

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