Reparative Therapy on Trial in California
Federal Judges Issue Conflicting Rulings
BY Joan Frawley Desmond
December 16-29, 2012 Issue | Posted 12/12/12 at 2:13 PM
SACRAMENTO, Calif. — Throughout adolescence and much of college, Aaron Bitzer did not openly acknowledge his sexual attraction to men, and when in his 20s he finally revealed the truth to a church minister, he found it tough to get the support and guidance he needed.
Ultimately, Bitzer was helped by one form of "reparative" or "conversion" therapy, designed to change or reduce unwanted same-sex attraction, and hopes to be trained to provide this service for others.
Now he is one of three plaintiffs who have challenged a new California law that prohibits licensed mental-health professionals from offering any form of reparative therapy to minors. On Dec. 3, a federal trial judge in Sacramento, Calif., granted a temporary injunction that offers a reprieve for two of the plaintiffs, who are licensed therapists.
The lawsuit, filed by the Pacific Justice Institute, a California-based public interest group, alleges that the banning of "sexual-orientation-change efforts" for minors, irrespective of their wishes or beliefs — or those of their parents or of their chosen therapists — constitutes a violation of constitutionally protected free speech, religious freedom and the right to privacy.
However, in a separate legal challenge to the law, another federal judge concluded that the plaintiffs were unlikely to prove that it violated their civil rights and that the law should take effect as planned on Jan. 1. That Dec. 4 ruling was issued by U.S. district Judge Kimberly Mueller in response to a lawsuit filed by Liberty Counsel, another public interest group, who is representing another group of plaintiffs, including the National Association for Research and Therapy of Homosexuality (NARTH), who have sued to block the law.
In his ruling, U.S. district court Judge William Shubb found that the law infringed on the free-speech rights of mental-health professionals.
"Even if S.B. 1172 is characterized as primarily aimed at regulating conduct, it also extends to forms of (conversion therapy) that utilize speech and, at a minimum, regulates conduct that has an incidental effect on speech," Judge Shubb wrote.
Not a Final Ruling
Matt McReynolds, the Pacific Justice Institute attorney who represented the plaintiffs, applauded Judge Shubb’s decision.
"The issue is whether the state was trying to target a particular message or viewpoint, and the court agreed with us that that seemed to be the case," said McReynolds.
He noted, however, that the decision was "not a final ruling" and that the preliminary injunction only applied to the three plaintiffs in the case, at least for now. He invited other mental-health professionals in the field of reparative therapy to join the legal challenge before the law takes effect on Jan. 1.
The ruling was a blow to supporters of the California law, who have argued that it will save lives and prevent "dangerous" sexual-orientation-change efforts that can foster depression and self-hatred in young people struggling with homosexual inclinations.
"The state has the right and obligation to protect young people from this psychological abuse, which can lead to depression, substance abuse, self-harm and even suicide. We know this law will save lives," said Kate Kendell, executive director of the National Center for Lesbian Rights, in a published statement.
However, Judge Shubb’s ruling expressed skepticism about the California Legislature’s finding that sexual-orientation-change efforts were dangerous. The evidence cited to support such assertions, he wrote, included "questionable and scientifically incomplete studies."
California is the first U.S. state to ban reparative therapy.
A similar bill will soon be introduced in the New Jersey Legislature, and, on Nov. 27, Rep. Jackie Speier, D-Calif., announced that she had proposed a resolution asking Congress to denounce "sexual-orientation-change efforts."
The congresswoman said she would also investigate whether Medicaid funds were being used to reimburse therapists that provide such treatment.
To some extent, the debate over the efficacy and potential harm of sexual-orientation-change efforts serves as a placeholder for the broader, more passionate debate about the origins of same-sex attraction and also about whether social affirmation of homosexual behavior will heal the wounds of ostracism and self-hatred or leave serious emotional issues unresolved.
If same-sex attraction is inborn, therapy designed to overcome such inclinations could be counterproductive and deeply destructive.
But if sexual orientation may be strongly influenced by external factors, including family dynamics and childhood sexual abuse, then the treatment could help individuals distressed by their condition.
The California Catholic Conference opposed passage of the state law, though it played no role in the Pacific Justice Institute lawsuit.
"We opposed the law because it constituted an infringement of parental rights. This bans reparative therapy for minors, even if the minors themselves or the parents want the therapy," said conference spokeswoman Carol Hogan.
She noted that the law offered no exemption for clergy, religious or spiritual counselors who are licensed by the state.
Father Paul Check, executive director of Courage International, an apostolate for Catholics with same-sex attraction, viewed California’s law with dismay and said that "people who are suffering" should not be denied "assistance."
Father Check invited those seeking help to contact Courage and directed Catholics to a Vatican document, "The Truth and Meaning of Human Sexuality: Guidelines for Education in the Family."
Issued by the Pontifical Council for the Family in 1995, the document states, "If parents notice the appearance of this tendency or of related behavior in their children during childhood or adolescence, they should seek help from expert, qualified persons in order to obtain all possible assistance."
The point, Father Check said, is that the Church is concerned for the whole person."
"And in the mind of the Church, the psychological sciences, in accord with Christian anthropology, are not considered separate from pastoral care, but, rather, integral to it."
Opponents of sexual-orientation-change efforts have suggested that minors who undergo such therapy are often compelled to do so by family members, abetted by renegade therapists. However, Matt McReynolds, the Pacific Justice Institute attorney, challenged that assertion.
"Most people who work in reparative therapy are adamant that they don’t try to change anyone who doesn’t want to change," said McReynolds.
Aaron Bitzer echoed that point: "I voluntarily signed up for treatment. I never felt more free to be myself," he told the Register.
People who join support groups or seek one-on-one therapy are often motivated by a desire to square their sexual desires with the precepts of their faith, he said. They need licensed therapists who share or at least respect their religious beliefs.
The lawsuit names as defendants California Gov. Jerry Brown, who signed the bill in September, and more than 20 other state officials, including members of the California Board of Behavioral Sciences.
Professional organizations, including the California Psychological Association, also backed the bill, and advocates of the measure frequently cite a 2009 American Psychology Association statement on "sexual-orientation-change efforts (SOCE)," which noted that for some individuals undergoing this treatment "[d]istress and depression were exacerbated."
But while members of the APA taskforce expressed clear discomfort with the aim of reparative therapy, their actual findings were inconclusive: "There are no studies of adequate scientific rigor to conclude whether or not recent SOCE do or do not work to change a person’s sexual orientation."
Arguments against reparative therapy will receive a full hearing as the case moves forward, but McReynolds believes that opponents of the state ban will prevail.
"It is likely that we will ultimately succeed," he said, citing supportive comments from Judge Shubb’s ruling. "In the meantime, our clients will not have their free-speech rights put on hold."
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