Gay "Change" Therapy Ban Likely Violates First Amendment, Federal Judge Rules

065fenhanced buzz 14559 1354642010 14 600x400 Gay "Change" Therapy Ban Likely Violates First Amendment, Federal Judge Rules

The new California law would ban therapists from engaging in therapy to “change” minors' sexual orientation. A ruling puts the law on hold for three people who sued.

California Gov. Jerry Brown has been sued for trying to enforce the new state law banning the use of reparative therapy on minors.

Image by Damian Dovarganes / AP

A federal judge in California has halted the application of a state law there aimed at stopping therapists from using “sexual orientation change efforts,” or reparative therapy, on minors for three people who sued the state.

Judge William Shubb, a George H.W. Bush appointee to the court, did find, however, that the plaintiffs “are likely to prevail on the merits of their claim that [the law] violates their rights to freedom of speech under the First Amendment.”

In concluding that the plaintiffs were bringing a legitimate First Amendment claim, Shubb examined the law, shortened by the judge to “SOCE,” and found, “[W]hen applied to SOCE performed through ‘talk therapy,' [the law] will give rise to disciplinary action solely on the basis of what the mental health provider says or the message he or she conveys.”

The ruling only applies to the three plaintiffs in the lawsuit, two therapists and one person planning on becoming a therapist, and is only a preliminary injunction halting enforcement of the new law while the lawsuit can proceed.

After deciding that the law would regulate the content of therapists' speech, bringing the First Amendment into play, Shubb applied strict scrutiny to the law — meaning the state had to prove it had a compelling interest to regulate speech and that the law was written to advance that interest.

The judge concluded that the state did not prove that compelling interest, questioning whether the legislature provided evidence that the therapy would cause harm to minors. Shubb concluded that “evidence that SOCE 'may' cause harm to minors based on questionable and scientifically incomplete studies that may not have included minors is unlikely to satisfy the demands of strict scrutiny.”

As such, Shubb halted the law's application to the three plaintiffs, noting, “California has arguably survived 150 years without this law and it would be a stretch of reason to conclude that it would suffer significant harm having to wait a few more months to know whether the law is enforceable as against the three plaintiffs in this case.”

The National Center for Lesbian Rights has supported the law and opposed the lawsuit.

“We are disappointed by the ruling but very pleased that the temporary delay in implementing this important law applies only to the three plaintiffs who brought this lawsuit. We are confident that as the case progresses, it will be clear to the court that this law is fundamentally no different than many other laws that regulate health care professionals to protect patients,” its legal director, Shannon Minter, said.

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Gay "Change" Therapy Ban Likely Violates First Amendment, Federal Judge Rules


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