In a highly publicized, published opinion, the Court of Appeals for the Ninth Circuit recently upheld California’s SB 1172, the first law in the United States to bar licensed mental health providers from treating patients under the age of 18 with what has been interchangeably referred to as reparative therapy, gay conversion therapy, and sexual orientation change efforts (“SOCE”). Pickup v. Brown, No. 12-17681 (9th Cir. Aug. 29, 2013). SB 1172 gives California’s mental health providers who wish to perform SOCE a basic choice: wait until the “patient” becomes an adult or be subject to discipline for unprofessional conduct.
After the law’s enactment, two groups of plaintiffs quickly filed suits challenging the law and seeking to enjoin its enforcement on First Amendment and other constitutional grounds. In the first action, Welch v. Brown (E.D. Cal., filed Oct. 1, 2012), one federal judge held that SB 1172 is subject to strict scrutiny because it constitutes content and viewpoint restrictions. The court then granted preliminary relief on the grounds that SB 1172 was unlikely to survive heightened scrutiny. In the second action, Pickup v. Brown (E.D. Cal., filed Oct. 4, 2012), a different judge went in the other direction. Reasoning that SB 1172 bars treatment and not discussions of treatment, the court applied rational basis review. Given the lower level of scrutiny, the court denied preliminary relief because the plaintiffs were unlikely to show that SB 1172 violates SOCE practitioners’ speech rights. The Welch and Pickup orders resulted in two appeals to the Ninth Circuit, which were consolidated.
In conjunction with Lambda Legal Defense and Education Fund, Manatt attorneys Brad Seiling, Ben Shatz, and J.J. Rodriguez defended the law with two amicus briefs (one in each case) on behalf of 12 regional and national organizations that work with LGBT youth. Manatt argued that SB 1172 protects children and their families from the lifelong harms associated with “reparative” or “ex-gay therapy.” Manatt and Lambda advanced compelling firsthand accounts from reparative therapy survivors to highlight the harms that SB 1172 seeks to prevent. Those accounts revealed that survivors experience heightened rates of suicide and homelessness, schisms with their families, long-term mental health problems, and an aversion to therapy throughout their lives.
Manatt also advanced historical evidence about SOCE in California to establish that the state promoted, mandated, or was complicit in efforts to change the sexual orientation of minors. Manatt’s briefs traced the evolution of antihomosexuality statutes in California from (1) outright criminalization, to (2) law enforcement and judicial tactics to overcome loopholes in antihomosexuality laws, to (3) the state-sponsored quest for a “cure.” Given that history, including particularly egregious practices used on minors, Manatt argued that SB 1172 is a wholly appropriate exercise of the state’s police power to safeguard LGBT youth.
The Ninth Circuit agreed and affirmed its order denying preliminary relief in Pickup, while reversing the order granting preliminary relief in Welch. Writing for the unanimous panel, also consisting of Chief Judge Alex Kozinski and Judge Morgan Christen, Judge Susan Graber explained that when SB 1172 was enacted, “the overwhelming consensus was that SOCE was harmful and ineffective. On this record, [the panel had] no trouble concluding that the legislature acted rationally by relying on that consensus.” In reaching its conclusion, the court cited the type of anecdotal evidence that Manatt presented in its briefs and provided a laundry list of past SOCE, including many of the same methods cited by Manatt.
The Ninth Circuit’s opinion in Pickup is hardly the last word on SOCE. California’s SB 1172 motivated New Jersey’s Assembly Bill 3371, which seeks to protect “minors from attempts to change their sexual orientation.” New Jersey’s governor signed the bill into law just before the Pickup opinion was issued. Like in California, suit was almost immediately filed in federal court. King v. Christie, No. 3:13-cv-05038-FLW-LHG (D.N.J., filed Aug. 22, 2013). At least three other states are also considering following California’s lead. See Pa. SB 872 (an Act prohibiting mental health professionals from engaging in sexual orientation change efforts with an individual under 18 years of age); Wash. HB 1882 (reviewing sexual orientation change efforts for children); Mass. Bill H.154 (an Act relative to abusive practices to change sexual orientation and gender identity in minors).
Not surprisingly, the plaintiffs in both Pickup and Welch have filed petitions for rehearing en banc that highlight the “exceptional importance” of the Ninth Circuit opinion. The petitions also argue that reparative therapy is safe and that the evidence before the Legislature and the panel did not compel a contrary conclusion. To that end, as more states enact statutes like SB 1172, and more courts review those statutes, the type of evidence that Manatt advanced in its briefs will remain an important piece of the discussion.
The clients Manatt and Lambda Legal represented were Children’s Law Center of California; Dependency Legal Group of San Diego; East Bay Children’s Law Offices; Gaylesta; Legal Advocates for Children and Youth; The LGBTQ-Affirmative Therapist Guild of Utah; Los Angeles Gay & Lesbian Center; Los Angeles Youth Network (LAYN); Parents, Families and Friends of Lesbians and Gays; Public Counsel; The Trevor Project; and Truth Wins Out.