Following a slew of defeats in 2014, the movement to ban gay conversion therapy for minors has its hopes pinned, for now, on two states where bills are making progress this year.
Last week, both SF 334, a senate bill in Iowa and HB 15-1175, a house bill in Colorado, passed out of their respective committees on party-line votes. The bills would prohibit mental health providers from trying to change the sexual orientation of minors.
At this point, the medical establishment more or less unanimously agrees that conversion therapy does not work, and can be abusive. The American Psychological Association has been saying this for well over a decade.
Gay groups argue that parents should not force minors to undergo these treatments; through bans, they have sought to make the services unavailable. Opponents say that such laws violate parental rights as well as religious freedoms.
It has been exceedingly difficult to pass laws that would stop therapists from trying to “straighten out” children. Only two states, California and New Jersey, have bans on the books. Washington, D.C. joined in December. Similar measures failed last year in New York, Michigan, Minnesota, Maryland, Wisconsin and Vermont, to name a few. Just this January, a Virginia bill died in committee.
Then there is the matter of Oklahoma, which is moving to make conversion therapy for children emphatically legal. Rep. Sally Kern (R) introduced HB 1598 because she wants to make sure parents are able to put their children into counseling for same-sex attractions, she explained to The Oklahoman.
Last week, the committee that Kern chairs passed an amended version of the bill, 5-3. The new language still affirms conversion therapy for minors, with the exception of procedures that involve “physical pain, such as electroshock or electroconvulsive therapy, touch therapy, pornography exposure or vomit-induction therapy.” (These are all techniques that have been tried to curb the sexuality of gay people.)
Oklahoma seems to be the conservative exception; in recent weeks, legislators in several other states—Arizona, Florida, Ohio, Oregon and West Virginia—have introduced bills to ban conversion therapy, though there has been little movement. Even in Iowa and Colorado, the bills face a tough climb out of each state’s divided legislatures.
In California and New Jersey, the laws have withstood legal challenges so far. In 2013, the liberal 9th Circuit ruled that California’s ban does not violate the First Amendment because the ban “regulates professional conduct, not speech.” The Supreme Court declined to hear California’s case last year, letting the 9th Circuit’s decision stand.
In September, the 3rd Circuit upheld New Jersey’s gay-conversion ban for a slightly different reason. In contrast to the 9th Circuit, the 3rd Circuit said that conversion therapy can and does resemble speech — albeit professional speech — and therefore it does deserve some First Amendment protection. Nevertheless, the judges ruled that the New Jersey ban for minors remained constitutional because the state had given really good reasons to ban conversion therapy, good enough to override the First Amendment concerns.
The courts ruled in favor of the California and New Jersey bans because they recognized that the government has the power to regulate what professionals do. Ironically, that gets at one of the huge loopholes in these kinds of laws: They only spell out consequences for licensed professionals, while many conversion programs are run by unlicensed, often religious groups.
These days, it is outside of the doctor’s or therapist’s office where some of the ex-gay conversion practices have been the most bizarre. For instance, the adult plaintiffs in a lawsuit against the gay conversion outfit Jews Offering New Alternatives for Healing (JONAH) say that they participated in naked therapy sessions and beat effigies of their mothers with tennis rackets.
Their civil lawsuit alleges that JONAH committed consumer fraud—that it promised to make participants straight, and failed. In February, a superior court judge in New Jersey agreed, in a preliminary ruling.