Ban on Gay Conversion Therapy in Uncharted Territory

      Teenager Gabriel Arana came home from high school one day in fall 1998 to be confronted by his mother, who had discovered an e-mail with his confession to having a crush on a male classmate. “Are you gay?” his mother asked. “I blurted out that I was,” Arana recalled in a first-person account written in April for The American Prospect.
      Arana’s problem-solving mother gathered research on the Internet on “gay conversion therapy.” Along with Gabe’s father, she prevailed on their reluctant son to go meet the leading practitioner in the field: Joseph Nicolosi, a clinical psychologist in Los Angeles and then the president of the National Association for Research and Therapy of Homosexuality (NARTH).
      Arana’s story ends well. He gave therapy a try, but he was not “cured” — only left in despair and doubt that eventually led him to contemplate suicide in college. His chastened father came around. “I’d rather have a gay son than a dead son,” he said when he learned of Gabe’s suicidal thoughts. Today, Gabe is still gay, living in Washington with his husband and working as a writer and web editor at the Prospect.
      Gabe’s story exemplifies the results of gay conversion therapy: few if any documented “cures,” but many patients saddled with anguish and doubt about a part of their identity that the American Psychiatric Association delisted as a mental disorder four decades ago. Instead of helping patients, gay conversion therapy may hurt them, according to the considered judgment of the American Psychological Association and other recognized mental health associations.
      Based on those views and anecdotal evidence from the victims of unsuccessful gay conversion therapies, the California legislature earlier this fall approved a precedent-setting bill to bar licensed mental health professionals from practicing what the law calls “sexual orientation conversion efforts” (SOCE). “These practices have no basis in science or medicine and they will now be relegated to the dustbin of quackery,” Gov. Edmund G. Brown Jr. said in signing the bill on Sept. 29.
      The Democratic-controlled legislature approved the bill by substantial margins, but most Republicans opposed it. So did some mental health organizations, concerned that the bill as originally written could have affected mainstream professionals in their treatment of patients with sexuality issues. Those groups shifted to support or neutrality after the bill was rewritten more narrowly.
      In opposing the measure, NARTH and member therapists argued that their practices were being misrepresented and that the alleged harms were unproven. They noted that NARTH now officially discourages so-called “aversion therapies” — including electric shock, induced vomiting, and the like. In his account, Arana did not indicate that Nicolosi used such techniques in treating him.
      The fate of the law, due to go into effect on Jan. 1, is clouded because of separate legal challenges filed in federal court in Sacramento. One suit was brought by individual gay conversion therapists (Welch v. Brown); the other by NARTH, individual therapists, and unnamed parents on behalf of sons now being treated by Nicolosi (Pickup v. Brown). In successive rulings last week [Dec. 3, Dec. 4], one federal judge ruled against the law, while the other upheld it. The issue is headed inevitably to the federal appeals court for California, the Ninth Circuit, and perhaps eventually to the Supreme Court.
      The government has undoubted authority to regulate medical professionals, but the law ventures into uncharted territory because it touches on views — disapproval of homosexuality — that are constitutionally protected under the First Amendment’s provisions on freedom of speech and freedom of religion. '”There's a good deal of uncertainty about how to apply the First Amendment to professional speech to clients and even more uncertainty in the case of minors,'' Eugene Volokh, a First Amendment expert at UCLA Law School, remarked to The New York Times.
      In the first of the court rulings, Judge William Shubb saw the free-speech issue as requiring him to use the highest constitutional standard — strict scrutiny — in reviewing the law. “[I]t is difficult, if not impossible, to view the conduct of performing SOCE as anything but integrally intertwined with viewpoints, messages, and expression about homosexuality,” he wrote. Shubb said he doubted that the law would withstand strict scrutiny because the alleged harms of the therapies were unproven and the law left unlicensed counselors free to practice the therapies anyway.
      In her ruling the next day, Judge Kimberly Mueller viewed the law as regulating conduct, not speech, and therefore subject to the lax “rational basis” standard of constitutional review. Mueller acknowledged that the psychologists’ group’s task force had waffled on the harm issue. “We cannot conclude how likely it is that harm will occur from SOCE,” the task force wrote. But it went on to say there was evidence that efforts to change sexual orientation “may cause or exacerbate distress and poor mental health in some individuals, including depression and suicidal thoughts.” Mueller deferred to the legislature on the issue, saying it “could have had a legitimate reason” to enact the law.
      Whatever the eventual legal ruling, Arana is convinced that Nicolosi and others simply do not understand homosexuality, which Nicolosi to this day attributes to overprotective mothers and underattentive fathers. In an interview for the story, Nicolosi tells Arana that he thinks the therapies at least did no harm. “Like nuclear fallout, the damage came later,” Arana writes, “when I realized my sexual orientation would not change.”