'Gay conversion' law faces lawsuits

Tuesday , March 18, 2014 - 4:55 PM

Denny Walsh, Sam Stanton

SACRAMENTO -- Two lawsuits in Sacramento federal court seek to stop a new law from taking effect Jan. 1 in California.

The law, Senate Bill 1172 by Sen. Ted Lieu, D-Torrance, would ban the use of controversial “gay conversion” therapies on minors.

It is the only law of its kind in the nation, and the legal challenges could become landmark litigation. So far, two judges hearing the cases separately have declined to prevent the law from taking effect, but plaintiffs in one of the suits have moved to appeal their case to the 9th U.S. Circuit Court of Appeals.

The legal fight comes at a pivotal moment in the nation’s debate over gay rights. The U.S. Supreme Court earlier this month agreed to review the legality of California’s ban on same-sex marriage in a case that will have national implications.

California’s “gay-conversion” law is aimed at a much more limited population: licensed mental health providers who work with youths under age 18 with the goal of combating their attraction to people of the same sex.

The therapies, referred to as “sexual orientation change efforts” by their practitioners, have been roundly denounced by mental health groups and gay advocacy organizations.

The practice “has been rejected by every leading mainstream mental health association as ineffective and dangerous,” according to legal filings from Equality California, which pushed for passage of the law and serves as an advocacy group for lesbian, gay, bisexual and transgender people.

But at least some individuals who have experienced the therapy, both as minors and adults, insist it works and helped them carve out heterosexual lives.“It’s almost completely eradicated shame from my life,” said Aaron Bitzer, 36, who says he has undergone sessions of what is called “reparative therapy” to counteract his attraction to men. “It’s brought about a lot of benefits in my life.”

Bitzer is a plaintiff in one of the lawsuits seeking to bar the measure from taking effect. In an interview, he said the new law could prevent minors from receiving treatment he believes is helpful if they want to combat same-sex attraction.

He said no one should be forced to move away from same-sex attractions, but that the law would limit opportunities for youths who want such treatment.Plaintiffs in the two lawsuits include therapists who say the law will unfairly harm their practices and put them at risk of disciplinary action by state regulators.The law says the use of conversion therapy on minors “shall be considered unprofessional conduct and shall subject the provider to discipline by the provider’s licensing entity.”

Other plaintiffs include the National Association for Research and Therapy of Homosexuality, known as NARTH, a Utah-based group that contends there is “no reliable scientific evidence” that therapy to reduce same-sex attraction is harmful.

The two federal judges in Sacramento who are grappling with the lawsuits looked at the free-speech issue raised by therapists and reached opposite conclusions in separate orders issued this month.

U.S. District Judge William B. Shubb cited case law in concluding that a therapist’s advice to a patient is speech protected by the First Amendment.

On the other hand, U.S. District Judge Kimberly J. Mueller determined that a therapist’s advice to a patient is not speech, but professional conduct subject to state regulation and not a fundamental right. This allowed her to apply the “rational basis” test, a standard much lower than strict scrutiny, which Shubb applied.

Mueller found that the Legislature acted to shield minors from the treatment’s purported harms. Consequently, she ruled, the therapists who filed the lawsuit before her are not likely to prevail on their free-speech claim, and she declined to issue a preliminary injunction.

The plaintiffs in that suit plan an appeal, but the net result so far is that the law takes effect Jan. 1 for everyone but Bitzer and the two therapists in his lawsuit.

(Contact Denny Walsh at dwalshstartribune.com. Distributed by Scripps Howard News Service, www.shns.com.)

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