California's 'gay conversion' law faces two federal lawsuits

The Sacramento BeeDecember 17, 2012 

He is 14, the son of a Muslim father and a Catholic mother, and is being raised in a household where the family rejects the notion that it is all right to be gay.

Sometime last spring, the boy approached his parents with a problem.

"He said, 'I'm confused about whether I like boys or girls,' " the father explained in court papers. " 'I think I like both.' "

That "confusion" sent the parents in search of answers – to the father's mosque, books about the issue and the Internet.

"We raised our children in a mixed-faith household, and all of our children believe in and love God," the father said in court documents. "Homosexuality is inconsistent with both of our religions, and is against the faith of our children."

The family's dilemma and ones like it are the focus of two lawsuits in Sacramento federal court seeking 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 such as the 14-year-old, who is identified in court papers only as "John Doe 2."

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.

"Minors are committing suicide after being told they have something wrong with them, being told that if they try hard enough they can change it if they follow these practices, like taking showers with their father," Michelle Friedland, a San Francisco attorney representing Equality California, argued in court earlier this month.

"When it doesn't work, they get depressed and they feel like their doctor has told them there is something wrong with them, and their parents have sent them to a doctor licensed by the state who supposedly is telling them that there is something wrong with them, and it causes depression and suicide. That is the problem that the state is trying to solve here."

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, a Culver City man 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."

Limiting opportunities?

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.

The law also could curtail his professional ambitions: Bitzer said he hopes to someday open a practice that offers such therapy.

He said he first began to experience same-sex attractions in junior high school, and that those feelings have been diminished through church counseling and other programs, including weekend retreats with names such as "Living From the Heart" or "Adventure in Manhood."

He said no one should be forced to move away from same-sex attractions, but that allowing SB 1172 to take effect would limit opportunities for youths who want such treatment.

"Men like me who wish to become therapists and work in counseling others in our churches would be forced to promote factually unsound ideas, such as the notion that we are simply 'born this way' and there is no possibility of change," Bitzer said in a declaration filed in court.

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.

Joseph Nicolosi, a psychologist and plaintiff in one of the suits, says in court papers that he makes it clear to potential clients that they should find another counselor if their treatment goals include wanting "to continue in their homosexual lifestyle."

For those who want to eliminate their same-sex attractions – such as John Doe 2, the 14-year-old who is one of his patients – the treatment has been helpful, Nicolosi contends.

Videos of Nicolosi espousing his treatment are available on the Internet and show him encouraging individuals to seek out their "heterosexual potential."

The very existence of these videos could expose him to sanctions by state licensing agencies, up to and including losing his ability to practice, for being in violation of the new law, he contends.

A free-speech issue

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.

One found that the state ban infringes on therapists' free-speech rights. The other found it does not.

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.

Shubb then looked at whether the state was restricting that speech based on its content and prohibiting it based on the viewpoint it reflects. He decided that was the case, so was then obligated to apply the "strict scrutiny" test, a demanding legal standard that requires the state to show it has a compelling interest in taking action that infringes on constitutional rights.

The lack of evidence demonstrating "actual harm" to patients, and the fact the measure prohibits only licensed mental health providers from engaging in conversion therapy – while allowing unlicensed individuals to engage in it – prompted Shubb to rule that SB 1172 "is not likely to withstand strict scrutiny."

He issued a preliminary injunction barring application of the law to the three named plaintiffs in the lawsuit before him: two therapists and Bitzer.

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.

According to U.S. Supreme Court precedent, the question posed under the rational basis test is merely whether "the government could have had a legitimate reason for acting as it did."

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.

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