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Are Bans on Sexual Orientation Conversion Therapy Constitutional?

Nous

Well-Known Member
Premium Member
Apparently 14 states and approximately 50 local jurisdictions have enacted bans on sexual orientation conversion therapy for minors.

List of U.S. jurisdictions banning conversion therapy - Wikipedia

These laws and ordinances have been challenged in courts, with varying outcomes. However, to date no federal circuit court has struck down a ban. The California law was quickly challenged in 2 federal courts, with one district court granting a preliminary injunction and the other denying same. These cases were consolidated by the Ninth Circuit panel, which upheld the law in 2012. You will be eager to read that decision here: FindLaw's United States Ninth Circuit case and opinions.

The en banc court and Supreme Court declined review.

It seems that most often the challenges of these laws have been primarily premised on First Amendment Free Exercise rights. But, as far as I've seen, all challenges have included arguments that such laws impermissibly infringe basic speech rights of those therapists, counsellors or others who may offer such a service. Indeed, on this front it may be genuinely difficult to determine exactly which words or messages are forbidden for providers to communicate to patients.

In any case, the Ninth Circuit addressed petitioners' Free Speech argument on the grounds that the law merely regulates "professional speech," which does not enjoy strict scrutiny from courts.

But in an entirely different case last year, National Institute of Family and Life Advocates v. Becerra, Justice Thomas discussed the issue of "professional speech," noting that the Supreme Court has not recognized "professional speech" as a separate category requiring greater deference from courts. He further elucidates the two circumstances in which the Court has allowed greater regulation of speech by professionals. Neither such circumstances would be applicable in the case of speech that might be prohibited by laws banning conversion therapy. See:
National Institute of Family and Life Advocates v. Becerra, 585 U.S. ___ (2018)

The various laws banning conversion therapy are similar but not identical. One possibly important distinction is that some laws specify therapy that is premised on the postulate that "homosexuality" and/or bisexuality is a disease. Neither such sexual orientation category is considered a mental disorder by the APA. Consequently, it can be more readily argued that the effort to "treat" or correct such a sexual orientation category would be tantamount to malpractice.

But some laws do not wade into the issue of the disease premise for conversion therapy. The following is the text of the Tampa, FL, ordinance against which a judge recently granted a preliminary injunction:

Sec. 14-312. - Conversion therapy prohibited.

It shall be unlawful for any provider to practice conversion therapy efforts on any individual who is a minor regardless of whether the provider receives monetary compensation in exchange for such services.​

Municode Library

Justifying the preliminary injunction, the judge found that petitioners were likely to succeed in their arguments that the ordinance is unconstitutional due to it being an "overbroad" infringement on speech:

https://thinkprogress.org/wp-content/uploads/2019/01/Tampa-conversion-therapy-opinion.pdf

So my first question here is this: Does your opinion on whether such conversion therapy bans are or should be constitutional consistent with your views on the rightness or wrongness of conversion therapy?

My general opinion on the topic (as though anyone wants to know) is rather complex and nuanced. I do know that there is no scientific evidence by which to conclude that sexual orientation categories are biological categories, and that the scientific, historical and sociological evidence suggests just the contrary, i.e., that sexual orientation is a social construct. I am aware that that sentence will upset a lot of people. I also believe that it is unethical for anyone to try to involuntarily change the sexual orientation by which another person identifies. I believe that any person who is old enough to be aware of his/her sexual affinities is old enough to consent or withhold consent for any therapy concerning such sexuality.

In regard to the issue of the constitutionality of conversion therapy bans, I conclude that the case law indicates that such laws are an unconstitutional infringement of speech and should be struck down.

I do not attempt to draw any conclusion on whether the case law indicates that laws banning conversion therapy for minors violates anyone's Free Exercise rights, however, if such bans do violate anyone's Free Exercise rights, I believe that it should be the minor's Free Exercise rights that are of the utmost importance in deciding such a question.
 

sooda

Veteran Member
You can't do conversion therapy on a MINOR even if you're Michel Bachmann's husband and get government grants.
 

Nous

Well-Known Member
Premium Member
You can't do conversion therapy on a MINOR even if you're Michel Bachmann's husband and get government grants.
Again, here is my first question here:

Does your opinion on whether such conversion therapy bans are or should be constitutional consistent with your views on the rightness or wrongness of conversion therapy?
 

Liu

Well-Known Member
Even if those therapies would work - forcing someone to get their sexual orientation changed, let alone a minor, seems quite problematic to me.
 

sun rise

The world is on fire
Premium Member
You can't do conversion therapy on a MINOR even if you're Michel Bachmann's husband and get government grants.

To me, that's the crux of the issue. There is a distinction and to me a good one made in the law between a minor and adults. In the sexual arena, the laws are strong as they should be. There are laws about vaccination. There are laws about mandatory school attendance. All of these amount to limitations on the right and prerogatives of parents.

So the question to me reduces to where should the law determine that a parent's actions are harmful to their child? "Conversion therapy" to me is one such area.
 

Nous

Well-Known Member
Premium Member
Even if those therapies would work - forcing someone to get their sexual orientation changed, let alone a minor, seems quite problematic to me.

To me, that's the crux of the issue. There is a distinction and to me a good one made in the law between a minor and adults. In the sexual arena, the laws are strong as they should be. There are laws about vaccination. There are laws about mandatory school attendance. All of these amount to limitations on the right and prerogatives of parents.

So the question to me reduces to where should the law determine that a parent's actions are harmful to their child? "Conversion therapy" to me is one such area.

Would you want courts to decide the constitutionality of such laws on the basis of whether they approve or disapprove of such therapy, or whether they approve or disapprove of parents consenting for therapies for their minor children?
 

sooda

Veteran Member
To me, that's the crux of the issue. There is a distinction and to me a good one made in the law between a minor and adults. In the sexual arena, the laws are strong as they should be. There are laws about vaccination. There are laws about mandatory school attendance. All of these amount to limitations on the right and prerogatives of parents.

So the question to me reduces to where should the law determine that a parent's actions are harmful to their child? "Conversion therapy" to me is one such area.
You want a mandate to change a child's sexual orientation? How about making them all right handed?
 
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Brickjectivity

Turned to Stone. Now I stretch daily.
Staff member
Premium Member
So my first question here is this: Does your opinion on whether such conversion therapy bans are or should be constitutional consistent with your views on the rightness or wrongness of conversion therapy?
My opinions on this are not strong ones, but I don't think its a constitutional problem. A constitutional problem weakens the public union. This is not a clear case of that. It could but might not. It might be better to require people to wait until they are older.

My general opinion on the topic (as though anyone wants to know) is rather complex and nuanced. I do know that there is no scientific evidence by which to conclude that sexual orientation categories are biological categories, and that the scientific, historical and sociological evidence suggests just the contrary, i.e., that sexual orientation is a social construct. I am aware that that sentence will upset a lot of people. I also believe that it is unethical for anyone to try to involuntarily change the sexual orientation by which another person identifies. I believe that any person who is old enough to be aware of his/her sexual affinities is old enough to consent or withhold consent for any therapy concerning such sexuality.
What I hear on youtube is that Psychiatry considers sexual dysphoria to be an assumptive disorder akin to disorders such as a body dysmorphic disorder or anorexia. These are very difficult or impossible to treat as they cause you to believe something that isn't true. People telling an anorexic "You are not fat" just bounces off. Its also like one of those situations where someone is able to see but not perceive things on a particular side of their body. Its perceptual. That being said, surgery? I don't know. It sounds barbaric to me to cut someone's jewels because of a perception issue. Its tough for them, since they don't even get to be clearly gay; sort of neither this nor that. Is it a constitutional matter? I think its too confusing to be constitutional.

In regard to the issue of the constitutionality of conversion therapy bans, I conclude that the case law indicates that such laws are an unconstitutional infringement of speech and should be struck down.

I do not attempt to draw any conclusion on whether the case law indicates that laws banning conversion therapy for minors violates anyone's Free Exercise rights, however, if such bans do violate anyone's Free Exercise rights, I believe that it should be the minor's Free Exercise rights that are of the utmost importance in deciding such a question.
Speech? Maybe. Suppose you believed that you had no legs. Would it be unconstitutional for the law to prevent you having your legs sawn off? That seems like an equivalent question. Its just so far out from my experience that I can't imagine it being something the constitution can relate to. I think you'd have to be making a guess.
 

Subduction Zone

Veteran Member
If a credible argument could be made that those therapies constitute child abuse then the bans would not be unconstitutional. I am far from being an expert in the field. I have heard claims that they are child abuse, but I could not prove it myself. Whether or not it is child abuse would be a matter for the experts in the field to support.
 
Last edited:

esmith

Veteran Member
How Early Hormones Shape Gender Development
Many important psychological characteristics show sex differences, and are influenced by sex hormones at different developmental periods. We focus on the role of sex hormones in early development, particularly the differential effects of prenatal androgens on aspects of gender development. Increasing evidence confirms that prenatal androgens have facilitative effects on male-typed activity interests and engagement (including child toy preferences and adult careers), and spatial abilities, but relatively minimal effects on gender identity.

Hormones may affect girls’ interests, but not their gender identity or playmates | Penn State University
The researchers explored how prenatal exposure to androgens — hormones that are typically higher in males than in females — affected whether girls played more often with boys or girls.
They found that androgen exposure was not associated with girls spending more or less time in activities with other girls, but it was associated with an increased interest and more time spent in activities that have traditionally been thought of as masculine, like building things or playing or watching sports.


So given the above is it possible that minors/children are not developed to the point that their gender identity is not completely developed?
 

Jumi

Well-Known Member
Are conversions of left-handed or ambivalent handed kids to right-handed in camps constitutional in the US? If not, should they be? What kind of traits should we try to control, if we know the "therapies" cause lasting damage?
 

Brickjectivity

Turned to Stone. Now I stretch daily.
Staff member
Premium Member
I think I misread your question, Nous. You were talking about bans on conversion therapy. I thought you were talking about bans on sexual reassignment surgery.
 

Ellen Brown

Well-Known Member
Apparently 14 states and approximately 50 local jurisdictions have enacted bans on sexual orientation conversion therapy for minors.

List of U.S. jurisdictions banning conversion therapy - Wikipedia

These laws and ordinances have been challenged in courts, with varying outcomes. However, to date no federal circuit court has struck down a ban. The California law was quickly challenged in 2 federal courts, with one district court granting a preliminary injunction and the other denying same. These cases were consolidated by the Ninth Circuit panel, which upheld the law in 2012. You will be eager to read that decision here: FindLaw's United States Ninth Circuit case and opinions.

The en banc court and Supreme Court declined review.

It seems that most often the challenges of these laws have been primarily premised on First Amendment Free Exercise rights. But, as far as I've seen, all challenges have included arguments that such laws impermissibly infringe basic speech rights of those therapists, counsellors or others who may offer such a service. Indeed, on this front it may be genuinely difficult to determine exactly which words or messages are forbidden for providers to communicate to patients.

In any case, the Ninth Circuit addressed petitioners' Free Speech argument on the grounds that the law merely regulates "professional speech," which does not enjoy strict scrutiny from courts.

But in an entirely different case last year, National Institute of Family and Life Advocates v. Becerra, Justice Thomas discussed the issue of "professional speech," noting that the Supreme Court has not recognized "professional speech" as a separate category requiring greater deference from courts. He further elucidates the two circumstances in which the Court has allowed greater regulation of speech by professionals. Neither such circumstances would be applicable in the case of speech that might be prohibited by laws banning conversion therapy. See:
National Institute of Family and Life Advocates v. Becerra, 585 U.S. ___ (2018)

The various laws banning conversion therapy are similar but not identical. One possibly important distinction is that some laws specify therapy that is premised on the postulate that "homosexuality" and/or bisexuality is a disease. Neither such sexual orientation category is considered a mental disorder by the APA. Consequently, it can be more readily argued that the effort to "treat" or correct such a sexual orientation category would be tantamount to malpractice.

But some laws do not wade into the issue of the disease premise for conversion therapy. The following is the text of the Tampa, FL, ordinance against which a judge recently granted a preliminary injunction:

Sec. 14-312. - Conversion therapy prohibited.

It shall be unlawful for any provider to practice conversion therapy efforts on any individual who is a minor regardless of whether the provider receives monetary compensation in exchange for such services.​

Municode Library

Justifying the preliminary injunction, the judge found that petitioners were likely to succeed in their arguments that the ordinance is unconstitutional due to it being an "overbroad" infringement on speech:

https://thinkprogress.org/wp-content/uploads/2019/01/Tampa-conversion-therapy-opinion.pdf

So my first question here is this: Does your opinion on whether such conversion therapy bans are or should be constitutional consistent with your views on the rightness or wrongness of conversion therapy?

My general opinion on the topic (as though anyone wants to know) is rather complex and nuanced. I do know that there is no scientific evidence by which to conclude that sexual orientation categories are biological categories, and that the scientific, historical and sociological evidence suggests just the contrary, i.e., that sexual orientation is a social construct. I am aware that that sentence will upset a lot of people. I also believe that it is unethical for anyone to try to involuntarily change the sexual orientation by which another person identifies. I believe that any person who is old enough to be aware of his/her sexual affinities is old enough to consent or withhold consent for any therapy concerning such sexuality.

In regard to the issue of the constitutionality of conversion therapy bans, I conclude that the case law indicates that such laws are an unconstitutional infringement of speech and should be struck down.

I do not attempt to draw any conclusion on whether the case law indicates that laws banning conversion therapy for minors violates anyone's Free Exercise rights, however, if such bans do violate anyone's Free Exercise rights, I believe that it should be the minor's Free Exercise rights that are of the utmost importance in deciding such a question.

I've experienced it and now anyone who tries it on me could get severely injured. I think it defies the very words of Jesus the Christ, and those who use it lack any understanding or love. In some cases, it may be possible that the unloving acts of parents and teachers could contribute to it.

I don't think sexual orientation is like a switch that you can turn on or off, but comes in degrees. It is a decision that is personal. I was never Homosexual, though they accused me of it. If they hadn't been so ignorant and assinine they'd have seen that. I was married for 38 years and raised three children, but the moment I got sick, the churches turned on my like Jackals, and spiritually murdered me when I had done nothing wrong, at all !!! Myself, I am now completely a sexual, and Celibate per Matt 19:12. I am very disturbed now and will go try to calm myself.
 
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