'Regulating Sexual Orientation Change Efforts: The California Approach, Its Limitations, and Potential Alternatives' by Jacob M. Victor in (2013) Yale Law Journal explores "a recent and unprecedented piece of legislation enacted in California, which forbids licensed psychotherapists from engaging in "sexual orientation change efforts" (SOCE) with a minor".
The author argues that California's regulatory strategy is problematic on normative grounds and from the strategic perspective of those who seek to effectively curtail SOCE therapists’ influence; a better approach would undermine SOCE practitioners by regulating deceptive promises about the efficacy of therapeutic techniques more generally.
Victor comments that
In September 2012, the California legislature passed Senate Bill 1172 (SB 1172), an unprecedented piece of legislation that prohibits licensed psychotherapists from engaging in “sexual orientation change efforts” (SOCE) with minor patients. The legislation establishes that the state may revoke the license of any therapist who attempts to change a minor patient’s sexual orientation.
As many scholars have pointed out, the vast majority of psychiatrists and psychologists once believed that same-sex attraction could be “cured” through psychotherapy. However, since homosexuality was removed from the Diagnostic and Statistical Manual of Mental Disorders in 1973, the mainstream mental health establishment has gradually begun to understand homosexuality and bisexuality as benign, encouraging therapists to engage in practices that “affirm” a patient’s sexual orientation. At the same time, several groups – including NARTH, Exodus International, and JONAH – have continued to insist that sexual orientation can be changed through psychotherapeutic intervention. These organizations, and therapists affiliated with them, continue to provide SOCE therapy – also know as “conversion therapy” or “reparative therapy” – and often market these services to minors from religious communities In the last several years the mental health establishment has become increasingly concerned with these practices and issued reports concluding that SOCE is ineffective and potentially harmful. Lesbian, gay, and bisexual (LGB) rights organizations have also begun publicly documenting the stories of individual patients subjected to SOCE practices, many of whom describe their treatments as emotionally or sexually abusive.
The California legislature adopted SB 1172 in response to these new reports of SOCE’s potential harmfulness, pointing to the state’s “compelling interest in protecting the physical and psychological well-being of minors…and in protecting its minors against exposure to serious harms caused by sexual orientation change efforts.” Mainstream LGB rights groups, especially Equality California, were instrumental in galvanizing the state to act, and also framed the legislation as being part of broader efforts to “protect and empower” LGB youth. Though the new statute has faced significant legal challenges – it has already been enjoined on First Amendment grounds and may be struck down by the Ninth Circuit13 – this strategy of seeking legislation that bans the use of SOCE therapy on minors has become appealing to LGB rights groups nationwide. In response to lobbying efforts, legislators in New Jersey, New York, Pennsylvania, and Massachusetts recently proposed legislation modeled after SB 1172.
This strategy, however, is not without its costs. This paper argues that even those opposed to SOCE – a position this paper takes for granted – should still question the SB 1172 approach of using targeted legislation to ban the use of any SOCE practice on minors. While California’s willingness to intervene on behalf of LGB youth is commendable, the regulatory strategy employed in SB 1172 is problematic from both a normative perspective and from the more strategic perspective of those who seek to curtail SOCE therapists’ influence in the most politically expedient manner possible. This paper also proposes an alternative strategy that might bring about the same goals of SB 1172 – namely, preventing SOCE practitioners’ access to LGB youth – but with fewer normative or strategic problems.
The paper proceeds in three Parts. Part I provides background on SB 1172 and explores the understandings of SOCE’s harmfulness that seems to underlie the legislation. This Part also argues that this conception of SOCE’s harmfulness is partially grounded in the mental health establishment’s conclusions, derived from clinical studies, but also stems from a more ideological understanding of LGB identity. Part II raises three separate but interrelated problems with the legislation’s broad view of the state’s interest in regulating SOCE. First, SB 1172 uses the power of the state to impose an essentializing conception of LGB identity that risks marginalizing and stifling the experiences of those who fall outside mainstream conceptions of sexual orientation. Second, the legislation falls within an ill-defined and controversial area of First Amendment doctrine – the line between “professional” and “ideological” speech – and thus carries a pronounced risk of being struck down on First Amendment grounds. And third, SB 1172 risks fostering political backlash by playing into a politically appealing anti-LGB narrative that frames LGB rights in opposition to “parental rights.” Part III examines a potential alternative strategy for limiting SOCE practitioners’ access to patients that focuses on the “deceptive” promises made by most SOCE practitioners regarding the effectiveness of psychotherapeutic intervention in changing sexual orientation. Most SOCE practices could fall into a broader – and possibly already existent – regime that defines deceptive promises made by therapists as unprofessional conduct. Regulating SOCE through such a regime carries fewer normative or political-strategic concerns and could potentially bring about results similar to those of a targeted ban like SB 1172.
