Lawsuits over the constitutionality of laws banning “conversion therapy” will likely result in review of the issue by the U.S. Supreme court. At issue is whether state laws like those passed in Calfornia and New Jersey that ban “conversion” therapy violate the practitioner’s right to free speech under the First Amendment. The U.S. Court of Appeals for the Ninth Circuit held that the law banning California licensed therapists and psychiatrists from practicing gay conversion therapy techniques on children was not unconstitutional. The laws typically ban “sexual orientation change efforts,” defined as “the practice of seeking to change a person’s sexual persuasion, including, but not limited to, efforts to change behaviors or gender expressions, or to reduce or eliminate sexual or romantic attractions or feelings toward a person of the same gender.”
“Senate Bill 1172 regulates conduct. It bans a form of medical treatment for minors; it does nothing to prevent licensed therapists from discussing the pros and cons of SOCE with their patients. Senate Bill 1172 merely prohibits licensed mental health providers from engaging in SOCE with minors,” Graber wrote. “Most, if not all, medical treatment requires speech, but that fact does not give rise to a First Amendment claim when the state bans a particular treatment.”
The panel also rejected the plaintiffs’ arguments that the law is unconstitutionally vague and infringes on the fundamental right of parents to choose their children’s medical treatment. “A reasonable person would understand the statute to prohibit only mental health treatment, including psychotherapy, that aims to alter a minor patient’s sexual orientation,” Graber wrote. As for parental rights, the panel found they do not include the right to choose a treatment that the state has deemed reasonably harmful.