A federal judge has temporarily blocked California from enforcing a first-of-its-kind law that bars licensed psychotherapists from working to change the sexual orientation of gay minors, but he limited the scope of his order to just the three providers who have appealed to him to overturn the measure.
U.S. District Court Judge William Shubb made a decision on Monday just hours after a hearing on the issue, ruling that the First Amendment rights of psychiatrists, psychologists and other mental health professionals who engage in "reparative" or "conversion" therapy outweigh concern that the practice poses a danger to young people. The First Amendment of the U.S. Constitution guarantees freedom of speech and other basic rights.
"Even if SB 1172 is characterized as primarily aimed at regulating conduct, it also extends to forms of (conversion therapy) that utilize speech and, at a minimum, regulates conduct that has an incidental effect on speech," Shubb wrote.
The judge also disputed the California Legislature's finding that trying to change young people's sexual orientation puts them at risk for suicide or depression, saying it was based on "questionable and scientifically incomplete studies."
The law, which was passed by the state Legislature and signed by Gov. Jerry Brown in October, states that therapists and counselors who use "sexual orientation change efforts" on clients under 18 would be engaging in unprofessional conduct and subject to discipline by state licensing boards. It is set to take effect on Jan. 1.
Although the ruling is a setback for the law's supporters, the judge softened the impact of his decision by saying that it applies only to three people — psychiatrist Anthony Duk, marriage and family therapist Donald Welch, and Aaron Bitzer, a former patient who is studying to become a counselor who specializes in clients who are unhappy being gay.
The exemption for them will remain in place only until Shubb can hold a trial on the merits of their case, although in granting their request for an injunction, the judge noted he thinks they would prevail in getting the law struck down on constitutional grounds.
Bitzer, Duk and Welch were represented by the Pacific Justice Institute, a Christian legal group. President Brad Dacus said he thought Shubb's ruling would have a chilling effect that would keep the licensing boards that regulate mental health professionals from targeting other practitioners.
"If there are any, we can easily add them to the case as a plaintiff," Dacus said. "We know we will have to have another hearing on the merits, but to be able to get a preliminary injunction at this stage is very telling as to the final outcome, and I'm very encouraged by it."
Complicating the outlook for the law is that another federal judge in Sacramento is considering similar arguments from four more counselors, two families and a professional association of Christian counselors, but has not decided yet whether to keep the ban from taking effect.
"We are disappointed by the ruling, but very pleased that the temporary delay in implementing this important law applies only to the three plaintiffs who brought this lawsuit," National Center for Lesbian Rights Legal Director Shannon Minter said. "We are confident that as the case progresses, it will be clear to the court that this law is fundamentally no different than many other laws that regulate health care professionals to protect patients."
Lawyers for the state argue that outlawing reparative therapy is appropriate because it would protect young people from a practice that has been rejected as unproven and potentially harmful by all the mainstream mental health associations.