"The fact that it is speech doesn't immunize it from liability… ( Robert Lachman / Los Angeles…)
The fate of a new California law that would prohibit doctors and therapists from trying to change a minor's sexual orientation depends in part on rulings in other cases in which the government tried to restrict physicians' communications with their patients.
Will the law be viewed as similar to a federal policy that prevented doctors from recommending marijuana to their patients? If so, the law perishes. Or is California's ban on so-called conversion therapy akin to a regulation upheld by the Supreme Court that required doctors to tell patients about the possibly detrimental effects of abortion?
The dispute is before the U.S. 9th Circuit Court of Appeals, which is expected to decide within the next several days whether to put the law on hold before it takes effect Jan. 1. A ruling could take months.
The ban on trying to change a minor's sexual orientation, the first of its kind in the nation, has divided the lower courts. A federal judge in Sacramento appointed by President Obama found that the law did not violate free speech rights; her colleague, appointed by the first President Bush, concluded that it did.
Legal scholars also have conflicting assessments of whether the law will be overturned on 1st Amendment grounds.
UC Berkeley constitutional law scholar Jesse Choper said the law faces "a steep uphill battle" on free speech grounds.
"It is very hard to silence speech generally," Choper said.
But UC Irvine Law School Dean Erwin Chemerinsky said the law was constitutional because it banned an ineffective and harmful therapy.
Communications between professionals and their clients generally have less 1st Amendment protection than other forms of speech. A lawyer or doctor who negligently gives bad advice may be found liable for malpractice, and licensing requirements for professionals may be restrictive.
"The fact that it is speech doesn't immunize it from liability or punishment," Chemerinsky said.
California's law subjects doctors and therapists to discipline by their licensing boards for practicing the therapy known as "sexual orientation change efforts," or conversion therapy.
Treatments include psychoanalysis, behavioral therapy and religious and spiritual counseling. In the past, some licensed therapists have practiced aversion therapy, using nausea-inducing drugs to combat sexual impulses, and hormone treatments.
Therapists seeking to change a patient's orientation also have encouraged men to spend more time with heterosexuals, participate in sports and avoid members of the opposite sex, except for romantic contact.
One of the plaintiffs in the lawsuit now before the 9th Circuit is a 15-year-old boy who has been undergoing the therapy for 15 months.
Mathew Staver, the lead lawyer in that lawsuit, said the boy is receiving standard cognitive behavioral therapy. Shock treatment and aversion techniques are no longer used, he said.
"According to what I know, he has stopped experiencing same-sex attraction," said Staver, founder of Liberty Counsel, a nonprofit group that advocates for conservative Christian views.
Psychological efforts to change sexual orientation were once grounded in a 1952 classification of homosexuality as a mental disease in the Diagnostic and Statistical Manual of Mental Disorders.
But that classification was removed in 1973, and most psychological associations now recommend against the therapy, calling it ineffective and potentially harmful. A task force report by the American Psychological Assn. in 2009 said conversion therapy could trigger depression, suicide and substance abuse.
"Same-sex sexual attractions, behavior, and orientations per se are normal and positive variants of human sexuality — in other words, they do not indicate either mental or developmental disorders," the report said.
It said that there was no study demonstrating that therapy affected sexual orientation of children and teenagers, and that the prospect of effecting an enduring change in a person's sexual orientation was "unlikely."
But the report also said research on the therapy was too sketchy to draw conclusions about safety and efficacy and noted that some people said they had benefited from the counseling.
Initially, the bill that created the law was opposed by the California Psychological Assn., California Assn. for Licensed Professional Clinic Counselors, California Psychiatric Assn. and California Assn. of Marriage and Family Therapists. After the bill was amended, the associations of psychologists and family therapists supported the bill and the others withdrew their opposition. Organizations with religious viewpoints continued to oppose it.