Growing Trend of States Taking Legal Stance Against the Use of Sexual Orientation Conversion Therapy on Minors
Elizabeth Danquah-Brobby*
On August 20, 2015, in a trend gaining momentum across the United States, Illinois Governor Bruce Rauner signed into law the Youth Mental Health Protection Act (YMHPA). H.B. 217, 99th Gen. Assemb., Reg. Sess. (Ill. 2015). Illinois joins California, Oregon, and New Jersey to become the fourth state to pass into law state mandated protections for gay, lesbian, bisexual, and transgender (GLBT) youth from the known psychological dangers of the phenomenon known as sexual orientation conversion therapy. Cal Bus. & Prof. Code § 865.1; H.B. 2307, 78th Leg. Assemb., Reg. Sess. (OR. 2015); N.J. Stat. Ann. § 45:1-54; H.B. 217, 99th Gen. Assemb., Reg. Sess. (Ill. 2015) The District of Columbia provided similar legal protection in 2014. D.C. Code § 7-1231.14a.
Sexual orientation conversion therapy is a highly controversial practice wherein different modalities of what one would label treatment, and another would define as abuse, are used on patients in order to achieve the goal of replacing the patient’s homosexual desires with heterosexual ones. Karolyn Ann Hicks, Comment, “Reparative” Therapy: Whether Parental Attempts to Change a Child’s Sexual Orientation Can Legally Constitute Child Abuse, 49 Am. U. L. Rev. 505, 515 (1999). These therapies also attempt to promote stereotypical gender expressions while repressing others. Id. Although all references to homosexuality as a mental disorder were removed from the mental health field’s industry standard Diagnostic and Statistical Manual of Mental Disorders (DSM) over two decades ago, the practice of conversion therapy on minors is not outlawed in the majority of the United States. Compare The Diagnostic and Statistical Manual of Mental Disorders (Am. Psychiatric Ass’n 3rd ed. 1975) with The Diagnostic and Statistical Manual of Mental Disorders (Am. Psychiatric Ass’n 3rd-R ed. 1987). As with any psychological treatment, the methods of therapy can come in many forms, those most closely associated with sexual orientation conversion therapy include talk therapy sometimes known as reparative therapy, conversion therapy paired with religious practices such as prayer, aversion therapy such as the administration of nausea inducing drugs used in tandem with visuals of homosexual practice, visits to prostitutes, electric shock therapy, and oddly– excessive bike riding. Arcangelo S. Cella, A Voice in the Room: The Function of State Legislative Bans on Sexual Orientation Change Efforts for Minors, 40 Am. J. L. & Med. 113, 120–21 (2014).
While these recent state bills are undoubtedly a step in the right direction, upon closer examination each state’s regulation is somewhat without teeth. Specifically, the discipline portion in California, Oregon, and DC’s regulations all read closely if not identically to Illinois’, which states:
Section 30. Discipline. Any sexual orientation change efforts attempted on a person under the age of 18 by a mental health provider may be considered unprofessional conduct. Mental health providers found to have engaged in a sexual orientation change effort on a patient under the age of 18 may be subject to discipline by the licensing entity or disciplinary review board with competent jurisdiction.
H.B. 217, 99th Gen. Assemb., Reg. Sess. (Ill. 2015) (emphasis added).
The legislative history of California Senate Bill 1172 (the first state to successfully pass such a law) shows that the initial remedy proposed was a private cause of action “by a patient, former patient, or their representative.” S. Judiciary Comm., Sexual Orientation Change Efforts, SB 1172, 2011–2012 Reg. Sess., at 7 (Cal. 2012). The early version of the bill went on to specify that a patient who had received this type of therapy could seek the greater of their actual damages or statutory damages in the amount of $5,000. Id. The revised and enacted version provides no private cause of action, only unspecified professional discipline when and if the minor patient or their advocate report the misconduct. Cal. Bus. & Prof. Code § 865.1. While the California Bill’s language did manage to maintain that a mental health professional in violation of this provision shall be considered unprofessional conduct (as opposed to Illinois’ “may be”), it nevertheless lacks the private cause of action and monetary incentive which would increase the likelihood of victims to seek legal recourse. Id. In Illinois those mental health professionals who continue to practice these therapies face only possible, not certain, professional repercussions, further disincentivizing a victim from seeing through a complaint. H.B. 217, 99th Gen. Assemb., Reg. Sess. (Ill. 2015).
Although lacking sufficient remedies for patients harmed, the New Jersey and California laws have survived constitutional challenges. King v. Governor of New Jersey, 767 F.3d 216 (3d Cir. 2014); Pickup v. Brown, 728 F.3d 1042 (9th Cir. 2013). In Pickup, the Court of Appeals for the Ninth Circuit applied rational basis scrutiny and upheld the California law as having a rational relationship to the legitimate state interest of protecting the well being of minors. Pickup, 728 F.3d at 1057. The health care professionals argued that by preventing them from engaging in this type of therapy, which necessarily involves speaking, the law violates their right to free speech, and thus triggers heightened scrutiny. Id. at 1055. The Court acknowledged that most medical treatment involves a speech component, but that this regulation is better categorized as one of professional conduct with an incidental effect on speech. Id. Accordingly, rational basis scrutiny was appropriate. Id. Further, the Court added that mental health professionals are free to discuss or even recommend sexual orientation conversion therapy to their patients, or discuss the possibility of engaging in this treatment once the patients are no longer minors. Id. at 1056. The Court rejected the health care professionals’ overbroad and vagueness arguments, finding them unpersuasive. Id. at 1048.
In King v. Governor of N.J., the U.S. Court of Appeals for the Third Circuit applied intermediate level scrutiny, and still found the New Jersey law survived. King, 767 F.3d at 240. In doing so, the Court held that the law directly advanced the state’s substantial interest in protecting its citizens from harmful or ineffective professional practices and was not more extensive than necessary to serve that interest. Id. at 224. The King decision included lengthy discussion reflecting on, and ultimately disagreeing with, the Pickup court’s decision to categorize the regulation as one of conduct only requiring rational basis review. Id. at 224–29. Unlike in Pickup, the King decision declares the New Jersey regulation is one of speech, relying greatly on the distinction made by the Supreme Court in Holder v. Humanitarian Law Project – that it is not the function of the speech that determines whether it is should be treated as speech. Id. at 225; see Holder v. Humanitarian Law Project, 561 U.S. 1 (2010). The New Jersey law still survived the constitutional challenge, even when treated as a regulation of speech. King, 767 F.3d at 240. The health care professionals sought writ of certiorari, which the Supreme Court subsequently denied. King v. Christie, 135 S. Ct. 2048 (2015).
In 2015, 18 states (AZ, CO, CT, FL, IL, IA, MA, MN, NV, NY, OH, PA, RI, TX, VT, VA, WA) introduced similar bills to those passed in California, Oregon, New Jersey, Illinois, and the District of Columbia. The Lies and Dangers of Efforts to Change Sexual Orientation or Gender Identity, Human Rights Campaign: Resources, http://www.hrc.org/resources/entry/the-lies-and-dangers-of-reparative-therapy (last visited Sept. 8, 2015). Maryland delegate John Cardin withdrew his related bill in 2014, issuing a joint statement with Equality Maryland, a state GLBT advocacy organization, stating the bill was “unnecessary because patients can file complaints about such therapy to state health occupation boards.” Margaret Hartman, Where the States Stand in the Fight to Ban Gay Conversion Therapy, New York Magazine (Apr. 9, 2015), http://nymag.com/daily/intelligencer/2015/04/where-the-states-stand-on-gay-conversion-therapy.html. The statement went on to explain that a minor or their advocate can already file a complaint to these boards, questioning the standard of care they received from a mental health professional, which then triggers an investigation. Id. The statement included broad language identifying that the state health occupational board had regulatory tools it could use to prevent recurrence of such violations of care, but did not specify what tools or what remedies may be available to victims. Id.
Lawyers, law students, or otherwise interested parties, should remain on the lookout for legislation in this area being proposed, revised, enacted, and also challenged across the United States. Challenges to these laws demonstrate an unresolved Constitutional issue among Federal Circuits regarding whether these laws regulate speech or conduct. Onlookers should take time to note the specifics of what similar bills initially propose, as compared to the versions that are ultimately passed into law. Laws like these force us to consider if, as a society, we are content with legislation that “seem[s] little more than an expression of a state’s stance on the matter” with nothing more, and if we are doing a disservice to the communities these laws purport to protect, by celebrating legislation without much vigor. Arcangelo S. Cella, A Voice in the Room: The Function of State Legislative Bans on Sexual Orientation Change Efforts for Minors, 40 Am. J. L. & Med. 113, 140 (2014).
Elizabeth Danquah-Brobby is a Royal Shannonhouse Distinguished Scholar at the University of Baltimore School of Law. She is interested in access to justice issues, community outreach and education, and police misconduct and accountability. Currently Ms. Danquah-Brobby is a law clerk in a firm that specializes in employment discrimination and family law in Silver Spring, Maryland.
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