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Unanimous 9th Circuit Upholds First Ban on Gay-to-Straight Therapy

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by Publius
Posted August 29, 2013, 5:55 PM

Pamela A. MacLean reports at Trial Insider:

Mental health professionals in California are barred from gay conversion therapy on patients under 18, a federal appeals court held Thursday.  The 9th U.S. Circuit Court of Appeals decision in the closely watched appeal rejected claims the state law ban violated free speech rights of practitioners.

California became the first state to adopt a ban on the Sex Orientation Conversion Efforts, (SOCE), in 2012, to prevent counseling young people with an aim to eliminate same-sex sexual attraction, behavior or identity.  The bill, Senate Bill 1172, was set to take effect January 1, 2013, but it has been blocked until the courts could sort out its constitutionality.

The three-judge panel held “SB1172, as a regulation of professional conduct, does not violate the free speech rights of SOCE practitioners or minor patients, is neither vague nor overbroad, and does not violate parents’ fundamental rights.”

SOCE is sometimes called reparative or conversion therapy and began at a time when homosexuality was considered an illness, according to the court.  It’s goal is to change an individual’s sexual orientation from homosexual to heterosexual.

In 1973, homosexuality was removed from the psychiatric Bible, known as the Diagnostic and Statistical Manual of Mental Disorders.  A short time later psychiatrists declared homosexuality was not an illness.

The plaintiffs argued California’s ban on the therapy violated free speech rights.

Judge Susan Graber concluded that the legislature had demonstrated it acted rationally in deciding to protect the well-being of minors by prohibiting mental health providers from using SOCE on people under 18.  Chief Judge Alex Kozinski and Judge Morgan Christen joined the opinion.

This latest gay rights victory comes just days after the 25th annual meeting of Lavender Law, the lesbian, gay, bisexual and transgender bar conference in San Francisco.  That gathering celebrated the two major U.S. Supreme Court victories this year, opening the way for California to join a dozen states recognizing same-sex marriage and the extension of federal recognition of those unions by striking down Defense of Marriage Act, DOMA.

During the April arguments in the SOCE case, Matthew Staver, attorney with Liberty Counsel in Maitland, Florida, representing parents and therapists who support the therapy argued,  “This is an unprecedented regulation of psychiatric medicine.”

State Deputy Attorney General Alexandra Robert Gordon argued that the ban was “not a breathtaking prohibition on speech” as the opposition claims.”  Gordon cited a compilation of studies that the therapy is scientifically discredited, ineffective and “we call it unprofessional.”   .

Under the terms of California’s law, no one under the age of 18 may be submitted to gay conversion therapy, which relies on talking to a therapist.

The appeal also includes one 15-year-old, identified only as John Doe, who was receiving counseling and wanted to continue.

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