In the recent decision of Pickup v Brown, a three judge panel of the 9th US Circuit Court of Appeal unanimously upheld a law which bans state licensed mental health providers from engaging in “sexual orientation change efforts” with patients under 18 years of age.
Sexual orientation change efforts (SOCE) began at a time when homosexuality was considered an illness by the medical and psychiatric professions. The belief that homosexuality was a mental disorder was abandoned in the 1970s. California Senate Bill 1172 was introduced in September 2012 banning SOCE.
The court held that the law does not violate free speech rights of practitioners or minor patients and is neither vague nor overbroad. The court held that the law regulates professional conduct, not speech, and therefore was subject only to rational basis review. The court stressed that the law did not prevent practitioners from discussing or recommending SOCE, but only prevented them from carrying it out or risk professional disciplinary action. Practitioners are free to recommend that the patient go to another state to seek SOCE. They also added that while the professional conduct may be carried out through speech, this does not mean that free speech rights are at stake. The law does not prohibit SOCE carried out by unlicensed practitioners such as church counsellors. It also does not prohibit SOCE for adults.
The judges said that attempts to change a minor’s sexual orientation are dangerous, noting that in banning the treatment the legislature had relied on evidence linking to SOCE to feelings of guilt and anxiety as well as self-harm and suicide. Judge Susan Graber said, "One could argue that children under the age of 18 are especially vulnerable with respect to sexual identity and that their parents' judgment may be clouded by this emotionally charged issue as well".
The NGO Equality California intervened in the case. Their legal representative Shannon Minter, said “This decision clears the way for this life-saving law to protect California youth from cruel and damaging practices that have been rejected by all leading medical and mental health professional organizations. The court of appeals ruled in very clear terms that state-licensed therapists do not have a constitutional right to engage in discredited practices that offer no health benefits and put LGBT youth at risk of severe harm, including depression and suicide.”
Click here to read a press release from Equality California.