California's Ban On 'Reparative' Therapy Delayed

By Lisa Keen

California's ground-breaking law banning the use of reparative therapy on people younger than 18 did not go into effect on Jan. 1. A federal appeals panel issued an emergency order Dec. 21, 2012 delaying enactment pending the appeals court's review of a lawsuit challenging the law.

The religious right legal group Liberty Counsel sought the emergency order after federal district Judge Kimberly Mueller ruled Dec. 4, 2012 that a group of plaintiffs were "not likely to prevail on the merits" of their legal challenge to the law and refused their request.

The underlying lawsuit is Pickup v. Brown, pressed by four mental health professionals, the National Association for Research and Therapy of Homosexuality (NARTH), the American Association of Christian Counselors, and two "Jack and Jane Doe" plaintiff couples on behalf of two "John Doe" minors.

The plaintiffs' request for an emergency order argued that the John Doe minors would face "immediate and irreparable harm to their physical, emotional and mental health," and that the mental health practitioners would suffer damage to their careers, if the law is allowed to go into effect. The request also noted that another federal judge in Sacramento granted a preliminary injunction Dec. 3 in a similar lawsuit by a different set of plaintiffs.

"The intra-district conflict," said the Liberty Counsel motion, "creates an impossible legal quandary for the thousands of Californians affected by SB 1172," the new law.

On Jan. 17, the Ninth Circuit scheduled both cases to be heard in the federal court in San Francisco on April 15. Opening briefs are due this week.

California Attorney General Kamala Harris opposed the emergency motion, as did Equality California, which has been granted status as an intervening party in the lawsuits. Represented by the National Center for Lesbian Rights, Equality California argued that many more young people will be harmed if the law is not allowed to take effect. The "balance of hardships and the public interest," it said, "strongly favor allowing California youth to benefit now from the crucial protections established by SB 1172."

The three-judge panel granting the emergency injunction did not discuss its reasons. The panel included Alfred Goodwin (an appointee of President Nixon), Edward Leavy (Reagan), and Milan Smith (George W. Bush).

California Governor Jerry Brown signed the first-ever bill to ban the use of reparative therapy on people under the age of 18. That law, passed by the legislature in October and was set to take effect Jan. 1 when the emergency order was issued causing a delay.

Sexual orientation change efforts (SOCE), which attempt to convert people with a homosexual orientation to heterosexual, are generally referred to as "reparative therapy" or "conversion therapy." A small number of mental health care facilities promote the therapy, even though both the American Psychiatric Association and the American Psychological Association have said there is no sound evidence that it works and that there is evidence it can pose significant risks of self-destructive behavior to the client.

Liberty Counsel's lawsuit argues that the new law would violate the First Amendment free speech rights of the reparative therapists, as well as several rights of parents and rights of minors to receive information.

But Judge Mueller, in making her preliminary ruling on the case, said "nothing in (the new law) prevents a therapist from mentioning the existence of reparative therapies" and referring potential subjects of the therapy to persons, such as clergy, who are not state-licensed.

The ACLU filed a lawsuit in federal court in New Jersey, seeking to hold a reparative therapy group liable for consumer fraud.

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