American Journal of Law & Medicine

A Voice in the Room: The Function of State Legislative Bans on Sexual Orientation Change Efforts for Minors


Throughout the history (1) of the mental health profession, many psychotherapists have asserted that homosexuality is a mental condition or defect that may be corrected through treatment. (2) Homosexuality was not officially declassified as a mental illness until 1973, and it was not until recently that mainstream mental health organizations renounced the claim that therapy can alter sexual orientation. (3) Sexual orientation change efforts (SOCE) (4) involve various types of psychotherapy, from the familiar and seemingly benign talk therapy to forms of behavioral therapy that include "masturbatory reconditioning, rest, visits to prostitutes[,] excessive bicycle riding," and even physical abuse. (5) SOCE are now widely regarded by mainstream mental health practitioners as unscientific, ineffective, and mentally and emotionally harmful. Nevertheless, due to persistent societal disapproval of homosexuality, some mental health providers continue to engage in SOCE, often causing their patients to experience shame and anxiety well into adulthood. (6)

Historically, individuals who suffered harm from SOCE lacked viable options for taking legal action against their doctors. In 2012, the State of California finally recognized that lesbian, gay, bisexual, and transgender (LGBT) youth subjected to SOCE "deserve a voice in the room." (7) The legislature passed S.B. 1172, which prohibits mental health practitioners licensed by the state from engaging in SOCE with persons under the age of eighteen. (8) The law classifies SOCE as unprofessional conduct sanctionable by a practitioner's licensing board. When he signed the bill, California Governor Jerry Brown praised the measure for "bann[ing] non-scientific 'therapies' that have driven young people to depression and suicide." (9) The law, he said, would at last "relegat[e] [SOCE] to the dustbin of quackery." (10) The expressive significance of S.B. 1172 in banning SOCE highlights a conscientious shift in California law, which until 2010 contained an outdated provision encouraging the State Department of Mental Health "to conduct scientific research into ... the causes and cures of homosexuality" as part of a program to identify sex offenders. (11)

Mental health professionals in favor of SOCE and patients who assert that they benefit from SOCE immediately challenged S.B. 1172 as an unconstitutional violation of free speech, patient autonomy, and parental rights in two lawsuits in the Eastern District of California. In one of the cases, Welch v. Brown, two psychotherapists and a patient who claims to have benefited from SOCE asserted that S.B. 1172 prevents psychotherapists from offering beneficial therapy to minors by restricting practitioners' right to free speech. (12) In Welch, Judge William Shubb enjoined the state and its licensing boards from enforcing the law against the three plaintiffs. (13) In the other case, Pickup v. Brown, a group of psychotherapists and the parents of two teenage boys receiving SOCE argued that S.B. 1172 denies them the right to receive treatment they view as beneficial. (14) Judge Kimberly Mueller denied the plaintiffs' motion for a preliminary injunction, but the Ninth Circuit Court of Appeals reversed, granting a statewide injunction of the law. (15) Judge Mueller subsequently stayed proceedings pending the resolution of the State's appeal of the Ninth Circuit's injunction. (16)

On August 29, 2013, the Ninth Circuit issued its opinion in both cases, holding that S.B. 1172 does not violate the First Amendment because the State may regulate mental health treatment, even when that treatment is performed through speech. (17) As a regulation of professional conduct and mental health treatment, not protected speech, S.B. 1172 is not subject to strict scrutiny. (18) Instead, the court applied the rational basis test and concluded that prohibiting psychotherapists from practicing SOCE on minors is rationally related to the state's legitimate interest in protecting minors. (19) The court rejected the plaintiffs' argument that S.B. 1172 is irrational because of the lack of scientific proof that SOCE actually cause serious harm. It is enough, the court stated, for the legislature to have relied on the "overwhelming consensus" of major mental health organizations that SOCE present a risk of harm to patients. (20) The court held that S.B. 1172 is a reasonable regulation of professional conduct that is within the state's police power to regulate. (21) The court further held that S.B. 1172 does not infringe on parents' rights to make medical decisions for their children because parents cannot "compel the State to permit licensed mental health [professionals] to engage in unsafe practices, and cannot dictate the prevailing standard of care in California based on their own views." (22) The court reversed Judge Shubb's injunction and affirmed Judge Mueller's denial of injunctive relief. (23) The Pickup plaintiffs filed a petition for rehearing en banc, arguing that the ruling conflicts with Ninth Circuit and Supreme Court precedent, but the Ninth Circuit declined to rehear the cases, affirming its prior decision. (24) On February 6, 2014, the Liberty Counsel, the organization representing the Pickup plaintiffs, filed an appeal with the United States Supreme Court. (25)

Outside of California, other state legislatures have also begun to address the legal status of SOCE. On August 19, 2013, New Jersey became the second state to ban the practice of SOCE on minors. (26) The New Jersey law uses a similar definition of SOCE and states that no psychotherapist licensed by the state shall practice SOCE with a person under the age of eighteen. (27) Opponents of the bill immediately filed a federal lawsuit claiming that the law unconstitutionally restricts the rights of parents and psychotherapists, but the Federal District Court for the District of New Jersey dismissed the suit. (28) As this article goes to print, other bills substantially similar to S.B. 1172 are being considered in an increasing number of jurisdictions, including New York, Pennsylvania, Ohio, Florida, Maryland, Minnesota, Washington, and the District of Columbia. (29) A bill introduced in Wisconsin in January 2014 would impose criminal minor sanctions on psychotherapists who practice SOCE on children. (30) On the federal level, Representative Jackie Speier has introduced the Stop Harming Our Kids (SHOK) resolution, encouraging states to take measures to protect minors from SOCE. (31) In the United Kingdom, Parliament considered banning SOCE for both minors and adults. (32) Although the country's Health Minister ultimately rejected the proposal, he stated that his office would consider other methods of ending the practice. (33)

In Massachusetts, a bill soon will be introduced that goes a step further than other state bans on SOCE. (34) In addition to proscribing SOCE and empowering licensing boards to sanction offending practitioners, the Massachusetts bill, H. 154, would create a private right of action for patients who subjected to SOCE as minors. (35) The bill states that the practice of SOCE would be a per se violation of the Massachusetts consumer protection statute, Chapter 93A, which prohibits unfair and deceptive business practices. (36) Therefore, H. 154 empowers individuals who subjected to SOCE as minors to take advantage of Chapter 93A's remedies, which include nominal statutory damages or actual damages, as well as costs and attorneys' fees. (37) If it passes, H. 154 may enable patients harmed by SOCE to receive compensation for their injuries and thus serve as a forceful deterrent to this practice.

In addition to lobbying for bans on SOCE, activists have taken their efforts into state courts and administrative agencies. On October 11, 2012--National Coming Out Day (38)--the Southern Poverty Law Center (SPLC) filed a complaint asking the Illinois state mental health licensing board to investigate the professional integrity of a Chicago social worker who offers SOCE to LGBT patients. (39) In New Jersey, SPLC has filed suit on behalf of four men who underwent SOCE as teenagers and their parents. (40) In this action, the plaintiffs allege that Jews Offering New Alternatives for Elealing, (41) a network of unlicensed therapists who promote SOCE, committed consumer fraud by knowingly disseminating false information about the effectiveness of SOCE to attract patients. (42) Without the aid of a statute like the one proposed in Massachusetts, these plaintiffs will be required to prove that their psychotherapists' conduct amounts to the type of conduct proscribed by the state's consumer protection laws.

This Note will not seek to determine whether S.B. 1172 or other bans on SOCE for minors are constitutional, or to predict the outcomes of cases challenging them. Instead, this Note will assume, based on the Ninth Circuit's ruling, that such bans are constitutional and explore their efficacy in carrying out states' interests in protecting the wellbeing of minors. (43) Part II of this Note contextualizes the current movement to ban SOCE by summarizing contemporary psychotherapeutic research on SOCE. Part III explains the difficulties that a minor plaintiff would face when suing a psychotherapist in negligence for harm resulting from SOCE. Part IV sets out the provisions of California's S.B. 1172 as enacted, with reference to portions of its legislative history relevant to understanding the goals of the statute.

Part V analyzes the probable effect, or lack thereof, that S.B. 1172 will have on a patient's ability to recover for harm suffered as a result of SOCE performed on the patient as a minor. Subparts A and B explain, respectively, how S.B. 1172 helps the patient's case by making the practice of SOCE a per se breach of the duty of care and how it fails to solve the difficulties in proving that SOCE caused harm to the patient. Subpart C explains the procedural difficulties that a minor would face in prosecuting an action in negligence that result from California's failure to toll the statute of limitations for medical negligence actions. Part VI recommends that California and other states considering SOCE bans include a private cause of action that would ensure recovery for patients and deter psychotherapists from practicing SOCE. Part VII observes that even in light of their practical difficulties, S.B. 1172 and similar laws are valuable for the principles of respect and tolerance that they express. As this analysis suggests, when neither parents nor doctors will defend a child from hatred and abuse, the child may have no other advocate. In such cases, the state may be able to provide the only effective support by codifying a policy against mistreatment.


This Note will proceed from the assumption that psychotherapy, in its various forms, is effective in influencing the thoughts and behaviors of patients who undergo it. Notwithstanding common doubts about the efficacy of psychotherapy, scholars conclude that psychotherapy impacts both the neural functioning and the emotional wellbeing of patients. (44) From the idea that psychotherapy may impact, for better or worse, those subjected to it as treatment for homosexuality, this Note will assess the significance of S.B. 1172 and similar laws in allowing patients harmed by SOCE to seek redress from mental health providers through complaints to licensing boards authorized to sanction practitioners or through civil actions facilitated by the statutes' new professional standards.


S.B. 1172 defines "sexual orientation change efforts" as "any practices by mental health providers that seek to change an individual's sexual orientation." (45) The statute goes on to specify that this definition "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." (46) The statute's general definition of SOCE encompasses the variety of methods in which mental health providers might practice SOCE. (47) Most commonly, (48) SOCE involve a form of talk therapy aimed at curing an individual of his or her homosexual orientation--viewed as a psychological or developmental defect--and sometimes are known as "reparative therapy." (49) Reparative therapy may be secular or religious in nature. (50) Religious forms of SOCE focus on the correction or "conversion" of the homosexual character through prayer and religious reflection, and often are referred to as "conversion therapy." (51) Other forms of SOCE involve behavioral therapy aimed at conditioning a patient to adopt and be comfortable with desired heterosexual practices, in spite of his homosexual orientation, which may persist as an ongoing struggle. (52) Behavioral SOCE cover a wide range of methodologies thought either to encourage heterosexual behavior or to suppress homosexual behavior. (53) These therapies range from visits to prostitutes and excessive bicycle riding to the use of electric shock and nausea-inducing drugs. (54) Behavioral conditioning intended to change an individual's desires by associating pain with images of homosexual behavior and relief with images of heterosexual behavior are typical of "aversion therapy." (55)

This Note will use the term SOCE as defined in S.B. 1172 to refer generally to practices aimed at changing an individual's homosexual behaviors or desires. In portions of the discussion in which a specific methodology of SOCE has particular significance, this Note will clearly denote whether reparative talk therapy, religious conversion therapy, behavioral therapy, or aversion therapy is being addressed.


Although the medical and psychotherapeutic communities regarded homosexuality as a physical or a mental illness well into the twentieth century, increased visibility and study of the gay and lesbian community led to a greater understanding and eventual depathologizing of homosexuality. (56) In 1973, after much debate and lobbying by the gay and lesbian community, the American Psychological Association officially removed homosexuality from its list of mental disorders in the second edition of its Diagnostic and Statistical Manual. (57) Over time, every major mental health organization in the Western world has recognized homosexuality as a natural variation of human sexuality. (58)


In addition to regarding homosexuality as a normal form of sexual behavior, the major mental health organizations have spoken out against efforts to change a patient's sexual orientation. (59) By the late 1990s, mental health professionals and the major mental health organizations agreed that efforts to change sexual orientation were, at a minimum, ineffective. (60) Evidence was mounting that these efforts often were harmful as well. (61) Today, as the Ninth Circuit recognized, "the well-documented, prevailing opinion in the medical and psychological community [is] that SOCE has not been shown to be effective and that it creates a potential risk of serious harm to those who experience it." (62) Nevertheless, debate over the merits of SOCE continues. Organizations dedicated to the treatment of homosexuality, as well as many independent practitioners, continue to assert that sexual orientation can change and that patients have a right to seek treatment for their unwanted homosexuality. (63)

1. Lack of Efficacy

In the past two decades, every major mental health organization has issued a statement impugning the scientific validity of SOCE and finding them to be ineffective. (64) In 2009, the American Psychological Association Task Force on Appropriate Therapeutic Responses to Sexual Orientation published a lengthy report (the "Task Force Report") reviewing the literature on sexual orientation and SOCE. (65) Regarding the efficacy of SOCE, the Task Force Report concluded that recent studies on SOCE were not sufficiently "scientifically rigorous" to provide reliable evidence of efficacy. (66) The Task Force Report described "scientifically rigorous" studies as those in which "participants are randomly assigned to treatment groups such that individual differences are more equally distributed and are not confounded with any change resulting from treatment" and those that "include a way for the researcher to determine what would have happened in the absence of treatment ... usually through the use of a control group." (67) In addition to the absence of these conditions, the Task Force Report pointed to other flaws in the studies that it reviewed, including the high drop-out rate of study participants, which undermines the ability of researchers to compare groups of participants, and design problems, such as the use of inexact or inconsistent definitions of "sexual orientation" and participants' self-reporting as a measure of change. (68)

The Task Force Report found few credible studies on SOCE, and those provided little support for the efficacy of SOCE. (69) The only scientifically rigorous studies on SOCE reviewed in the Task Force Report relied on older, discredited psychoanalytic theories. …

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