The Supreme Court has rejected a challenge to a California ban on “conversion therapy” for minors, letting stand a lower federal court ruling that upheld the state law passed in 2012.
The U.S. Court of Appeals for the Ninth Circuit in San Francisco had previously upheld the California law as constitutional. The Supreme Court justices did not comment Monday in refusing to hear the appeal, according to the Associated Press.
It was the second time the Supreme Court has turned away a challenge to the California law.
Conversion therapy, also referred to as “reparative therapy” or “ex-gay therapy,” are treatments that historically have targeted the LGBT community and claim to be able to change a person’s sexual orientation or gender identity.
Highly controversial, the practice has been decried by dozens of mental health, medical and LGBT rights groups as harmful and misleading. Nevertheless, attempts to ban it at the state or national level have repeatedly been met with resistance from conservative religious groups, which argue that such bans would infringe on their First Amendment rights.
The debate over conversion therapy is likely to remain in the spotlight after Democratic lawmakers last week introduced a bill that would ban the practice nationwide for those younger than 18 years old.
The Therapeutic Fraud Prevention Act of 2017 was introduced April 25 by Rep. Ted Lieu (D-Calif.), along with Sens. Patty Murray (D-Wash.) and Cory Booker (D-N.J.). About 70 other members of Congress, all Democrats, have said they support the bill, which would allow the Federal Trade Commission to classify conversion therapy and its practitioners as fraudulent.
“The bill is very simple,” Lieu told The Washington Post. “It says it is fraud if you treat someone for a condition that doesn’t exist and there’s no medical condition known as being gay. LGBTQ people were born perfect; there is nothing to treat them for. And by calling this what it should be, which is fraud, it would effectively shut down most of the organizations.”
Conversion therapy emerged as far back as the mid-19th century, when being gay was viewed as “either a criminal act or a medical problem, or both,” according to a 2009 report by the American Psychological Association. In 1952, homosexuality was included as a mental illness in the first edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (better known as the DSM), and a variety of approaches to changing one’s sexual orientation was born.
Some therapists used electric shock treatments or induced nausea, vomiting or even paralysis when their patients had “same-sex erotic” thoughts. Other individuals were told to wear a rubber band around their wrist, snapping it whenever he or she was attracted to a member of the same sex. In 1965, Time magazine ran an article with the headline “Homosexuals Can Be Cured.” In it, professor and psychiatrist Samuel Hadden claimed to have successfully changed the sexual preferences of gay males who participated in group psychotherapy.
“Over the course of four to eight years, Hadden explained, patients shared and interpreted each other’s dreams, cast aside their ‘flamboyant’ clothes and manners, worked through their hostilities and neuroses, and began dating women,” the magazine wrote in 2015, in a look back to the original story. “Marriages were saved and made.”
Despite resistance from gay rights leaders at the time, these types of treatments persisted through the 1960s and 1970s. Meanwhile, psychiatric groups were reevaluating the literature, and in 1973, homosexuality was removed as a disorder from the DSM.
Since then, dozens of major mental health, medical and LGBT rights groups have publicly come out against conversion therapy, from the American Academy of Pediatrics to the National Association of Social Workers. The American Psychological Association found that efforts to change sexual orientation harmed some people rather than helping them, leading to increased distress and depression, as well as negative self-image.
Similarly, a San Francisco State University study found that, compared to LGBT youth who are accepted, young people who experience rejection based on their sexual orientation or gender identity were eight times more likely to have attempted suicide, nearly six times more likely to report high levels of depression and more than three times as likely to use illegal drugs, according to the nonprofit Human Rights Campaign.
“There is no single model because this is not a science, but it’s all incredibly harmful,” said Xavier Persad, legislative counsel for the gay rights group. “It’s a quack science. It’s not based on science. We’ve heard and seen so many things, everything from folks being encouraged to not speak to their mothers and sisters, because somehow that is affecting their sexuality, all the way up until very incredibly inappropriate interactions between therapists and patients in various states of undress.”
Seven states and the District of Columbia have successfully passed legislation to ban or restrict conversion therapy in some way. California was the first to do so, banning the practice outright in 2012; others are New Jersey, Oregon, Illinois, Vermont and, just this month, New Mexico. Although New York does not have an outright ban, the state effectively prohibits conversion therapy through administrative regulations.
“The mere promise that you can somehow change someone’s gender identity or sexual orientation is, in it of itself, inherently deceptive and false,” said New Mexico state senator Jacob Candelaria, who sponsored the new legislation there. As the only openly gay man in the state legislature, Candelaria said he understands how “frightening and stressful” the process of coming out can be, both for the individual and the family.
“Unfortunately what you have is these providers who prey upon that … and make a false promise that if you do X, Y and Z, you can just get rid of ‘the problem,’ ” Candelaria said.
Support for conversion therapy remains fueled by conservative Christian groups, and in recent months, some in the LGBT community have questioned whether those groups would hold greater sway during Donald Trump’s presidency.
On Tuesday, a group called the National Task Force for Therapy Equality announced it had filed a Federal Trade Commission complaint against three groups that have lobbied for conversion therapy bans — including the Southern Poverty Law Center, the Human Rights Campaign and the National Center for Lesbian Rights.
The complaint accused the three groups of committing “mass fraud” and “actively distorting the scientific research by promoting the ‘Born Gay’ hoax,” among other allegations.
“It’s shocking that these gay activists have actually been able to deceive six states and several cities with their pseudoscientific claims of ‘harm’ to ban psychotherapy,” Christopher Doyle, a co-coordinator for the task force, said in a statement.
Earlier this year, Peter Sprigg of the Family Research Council, a conservative lobbying group that supports conversion therapy, told ABC’s “20/20” that he felt confident Vice President Pence and other Republicans would support the FRC in fighting the “gay lobby.”
“I see it as unlikely that any sort of legislative — federal legislative attack upon sexual reorientation therapy will … go anywhere,” Sprigg said on the program, adding that he supported only “ordinary talk therapy” and would not tolerate physical abuse. “As a Christian, I believe that the Bible teaches that to choose to engage in homosexual conduct is a sin.”
Pence has been frequently accused of having supported conversion therapy in the past, in large part owing to a 2000 campaign website from when he was running for Congress that stated “resources should be directed toward those institutions which provide assistance to those seeking to change their sexual behavior.”
Pence’s press secretary, Marc Lotter, told The Post in an email that such accusations misrepresented Pence’s views.
“Any assertion that Vice President Pence supported or advocated for conversion therapy is patently false and is a mischaracterization of language from a 16-year old campaign website,” Lotter said in a statement. “As a candidate for Congress in 2000, the Vice President’s website advocated that public funding in the Ryan White CARE Act be directed to groups that promoted safe sexual practices in the hopes of reducing the spread of HIV.”
Lotter did not answer a question sent by email about whether Pence would support the new bill seeking to ban conversion therapy, adding later that the vice president “does not offer his opinion on any proposed legislation outside of the official position of the White House.”
During her confirmation hearings for education secretary, Betsy DeVos was called out by Sen. Al Franken (D-Minn.) for her family’s alleged donations to groups such as Focus on the Family, a conservative Christian organization that pushes conversion therapy. DeVos said that Franken had mischaracterized her “core” family’s donations and that she did not support conversion therapy.
“I’ve never believed in that,” DeVos told Franken. “First of all, let me say I fully embrace equality, and I believe in the innate value of every single human being. And that all students, no matter their age, should be able to attend a school and feel safe and be free of discrimination.”
Lieu, the Democratic congressman, said he was encouraged by increasing awareness about the issue since he authored the California bill that ultimately passed in 2012, when he was a state senator.
“That was the hardest bill I ever did,” Lieu said. “It almost failed in the very first committee. And a lot of folks were uncomfortable with, in their view, getting in the way of the parent-child relationship. And so we did have a lot of initial resistance. But once it passed basically the floor, everyone thought oh, what a great idea.”
He also was heartened when, in 2013, New Jersey Gov. Chris Christie became the first Republican governor to sign a state bill banning conversion therapy for minors.
In a statement then, Christie said he had reservations about the bill because he felt the government was limiting parental choice when it came to raising their children.
“However, I also believe that on issues of medical treatment for children we must look to experts in the field to determine the relative risks and rewards,” Christie said. “I believe that exposing children to these health risks without clear evidence of benefits that outweigh these serious risks is not appropriate. Based upon this analysis, I sign this bill into law.”
In a statement, Human Rights Campaign president Chad Griffin applauded the new congressional proposal.
“So-called ‘conversion therapy’ is nothing more than child abuse and those who inflict it on others must be held accountable,” Griffin said. “HRC thanks Senators Murray and Booker and Representative Lieu for their efforts to outlaw this dangerous and inhumane practice. Now more than ever, we must send a clear message to the LGBTQ community — and especially LGBTQ young people — that who you are is not something that needs to be fixed.”