What Do Restrictions on “Conversion Therapy” Actually Say?

Posted by MK on Feb 20, 2014 @ 11:35 am
Washington State Capitol Building
The Washington State Capitol

State legislators around the country have increasingly moved to protect youth from a set of dangerous and widely discredited practices known as “conversion therapy,” “reparative therapy,” or “sexual orientation change efforts” (SOCEs). SOCEs aim to eliminate or reduce same-sex attractions; the purpose, in effect, is to “treat” or “cure” homosexuality (and bisexuality), even though same-sex orientation is not an illness.

Media coverage of legislation restricting SOCEs typically has not delved into the specifics of the laws and proposals, likely because many reporters (not to mention many readers) don’t have the patience to weed through the often-dense language of legislation. But advocates for LGBT youth and other opponents of SOCE may benefit from learning more about the details than the mainstream press coverage makes possible.

This post serves a resource and reference to fill some of the gaps in the mainstream reporting. It sets out, in an accessible format, excerpts of the key language from laws in New Jersey and California (which have already approved SOCE restrictions) as well as from bills proposed in Maryland and Washington State. You’ll also find links to the full text of the legislation, along with a brief summary of each bill or law’s history. (A future post will discuss other states’ proposals.) At the end, I’ve posted links to commentary and resources from around the web.

Note: If you’re just looking for an overview, it’s probably enough to only read about one state’s bill or law—I recommend the section on California—because the legislation does not vary much from state to state.

Scroll down or click on a state name below to learn more.

California’s SB 1172:
The Nation’s First Law Restricting SOCEs

SB 1172’s history and full text:

In early 2012, California State Senator Ted Lieu introduced SB 1172, which bars licensed health professionals from engaging in SOCEs with minors. The legislature approved the bill that summer and Governor Jerry Brown signed it into law that fall, making California the first state with legislative restrictions on SOCEs.

Click here for the full text of California’s SOCE law, SB 1172.

SOCE supporters challenged the law in court, which initially led to conflicting rulings by two federal district judges. A federal appeals court resolved the conflict in favor of the law, rejecting the argument that it infringes free expression. Opponents have asked the Supreme Court to hear an appeal; the Court hasn’t yet decided whether to take the case.

The prohibition:

California’s law, SB 1172, provides: “Under no circumstances shall a mental health provider engage in sexual orientation change efforts with a patient under 18 years of age.”

How the California law defines SOCEs:

The law defines “sexual orientation change efforts” to mean “practices by mental health providers that seek to change an individual’s sexual orientation. This includes efforts to change behaviors or gender expressions, or to eliminate or reduce sexual or romantic attractions or feelings toward individuals of the same sex.”

To prevent misapplications, the bill clarifies that the SOCE definition does not encompass “psychotherapies that: (A) provide acceptance, support, and understanding of clients or the facilitation of clients’ coping, social support, and identity exploration and development, including sexual orientation-neutral interventions to prevent or address unlawful conduct or unsafe sexual practices; and (B) do not seek to change sexual orientation.”

To whom the California law applies:

SB 1172 only restricts what “mental health provider[s]” can do, with “mental health provider” defined to mean

a physician and surgeon specializing in the practice of psychiatry, a psychologist, a psychological assistant, intern, or trainee, a licensed marriage and family therapist, a registered marriage and family therapist, intern, or trainee, a licensed educational psychologist, a credentialed school psychologist, a licensed clinical social worker, an associate clinical social worker, a licensed professional clinical counselor, a registered clinical counselor, intern, or trainee, or any other person designated as a mental health professional under California law or regulation.

Provision on violations:

Practicing SOCEs on a minor in California “shall be considered unprofessional conduct and shall subject a mental health provider to discipline by the licensing entity for that mental health provider.”

Purpose and other provisions:

The California law’s opening sections set forth detailed legislative findings and declarations of purpose, noting that “major professional associations of mental health practitioners and researchers” have recognized “for nearly 40 years” that “[b]eing lesbian, gay, or bisexual is not a disease, disorder, illness, deficiency, or shortcoming.” The law then describes and quotes position statements, resolutions, journal articles, position statements and other materials that are critical of SOCEs from the American Psychological Association, the American Psychiatric Association, the American Academy of Pediatrics, the American Counseling Association, the National Association of Social Workers, the American Psychoanalytic Association, the American Academy of Child and Adolescent Psychiatry, and the Pan American Health Organization (a regional office of the World Health Organization).

For example, SB 1172 notes that

[t]he American Psychological Association convened a Task Force on Appropriate Therapeutic Responses to Sexual Orientation. The task force conducted a systematic review of peer-reviewed journal literature on sexual orientation change efforts, and issued a report in 2009. The task force concluded that sexual orientation change efforts can pose critical health risks to lesbian, gay, and bisexual people, including confusion, depression, guilt, helplessness, hopelessness, shame, social withdrawal, suicidality, substance abuse, stress, disappointment, self-blame, decreased self-esteem and authenticity to others, increased self-hatred, hostility and blame toward parents, feelings of anger and betrayal, loss of friends and potential romantic partners, problems in sexual and emotional intimacy, sexual dysfunction, high-risk sexual behaviors, a feeling of being dehumanized and untrue to self, a loss of faith, and a sense of having wasted time and resources.

The California law also declares that the state “has a compelling interest in protecting the physical and psychological well-being of minors, including lesbian, gay, bisexual, and transgender youth, and in protecting its minors against exposure to serious harms caused by sexual orientation change efforts.” Though this language has little practical effect, the bill’s author likely included this section in anticipation of legal challenges: When faced with constitutional challenges to legislation, courts sometimes consider whether the government had a “compelling interest” in enacting the law at issue.

Finally, the law’s opening section also describes some of the adverse health consequences experienced by youth whose families reject them based on their sexual orientation, noting that according to one study by Caitlin Ryan and others,

lesbian, gay, and bisexual young adults who reported higher levels of family rejection during adolescence were 8.4 times more likely to report having attempted suicide, 5.9 times more likely to report high levels of depression, 3.4 times more likely to use illegal drugs, and 3.4 times more likely to report having engaged in unprotected sexual intercourse compared with peers from families that reported no or low levels of family rejection.

(Click on one of the following links to jump to the beginning of the section on California, Maryland, New Jersey or Washington.)

Maryland’s SOCE Legislation: House Bill 91

House Bill 91’s history and full text:

Maryland State Delegate Jon S. Cardin introduced House Bill 91 on January 8, 2014. As of February 20, the bill had been referred to the House of Delegates’ Health and Government Operations Committee and had not yet received a vote. A committee hearing on the bill was recently cancelled. Though the reasons for the cancellation are unclear, it may be a setback for supporters; the bill’s opponents have certainly interpreted it that way.

Click here for the full text of Maryland’s proposed SOCE legislation, House Bill 91.

The prohibition:

House Bill 91 provides that a “mental health care practitioner may not engage in sexual orientation change efforts with a patient who is a minor.”

How the Maryland bill defines SOCE:

House Bill 91 defines “sexual orientation change effort” to mean “a practice by a mental health care practitioner that seeks to change an individual’s sexual orientation.” The term “includes reparative therapy, conversion therapy, and any effort to change the behavioral expression of an individual’s sexual orientation, change gender expression, or eliminate or reduce sexual or romantic attraction or feeling toward individuals of the same sex.”

To prevent misapplications and to protect health professionals’ freedom of expression, the bill clarifies that the definition of SOCE does not include

1. A practice by a mental health care practitioner that:

A. Provides acceptance, support, and understanding, or the facilitation of coping, social support, and identity exploration and development, including sexual orientation-neutral interventions to prevent or address unlawful conduct or unsafe sexual practices; and

B. Does not seek to change sexual orientation; or

2. Communication by a mental health care practitioner:

A. Discussing sexual orientation or sexual orientation change effort;

B. Expressing the mental health care practitioner’s viewpoint regarding sexual orientation or sexual orientation change effort; or

C. Recommending sexual orientation efforts to patients or referring patients to unlicensed individuals, such as religious leaders.

In other words, the bill does not limit what health professionals can say about SOCE or about sexual orientation generally. They are free to advocate for SOCE, free to say that they believe homosexuality is an illness (despite the mainstream mental-health community’s longstanding rejection of that position), free to say homosexuality is a sin, free to publicly criticize those who have restricted SOCE’s use, and free to recommend that somebody seek SOCE elsewhere, such as through religious counseling (which isn’t covered by the statute). The only thing they can’t do is actually engage in the practice of SOCE with a minor.

Note that while California’s law (discussed above) does not expressly include this second set of limitations, a federal appeals court interpreted the law in a way that ensures its scope is similarly limited. The limitations are important to protect freedom of expression under the First Amendment.

To whom Maryland’s bill applies:

The bill only applies to someone who is “mental health care practitioner,” which means a “health care practitioner licensed or certificated” under Titles 14, 17, 18 or 19 of Maryland’s Health Occupation statutes (available through this website). These “Titles” regulate physicians, professional counselors and therapists, psychologists, and social workers, respectively. The Maryland SOCE bill further defines “mental health care practitioner” to include any other “health care practitioner licensed or certificated under” the “Health Occupations” statutes if that practitioner is specifically “authorized to provide mental health services” by the “practitioner’s licensing board.”

Provision on violations:

The bill states that “[a] mental health care practitioner who engages in sexual orientation change efforts with a patient who is a minor shall be considered to have engaged in unprofessional conduct and shall be subject to discipline by the health care practitioner’s licensing board.”

Purpose and other provisions:

Like bills and laws in other states, the Maryland bill includes a lengthy preamble with legislative “findings” and statements of purpose. Like California’s law, for example, the bill notes that “major professional associations of mental health practitioners and researchers in the United States have recognized that being lesbian, gay, or bisexual is not a disease, a disorder, an illness, a deficiency, or a shortcoming for nearly 40 years.” The preamble then describes and quotes from findings, resolutions, journal articles, position statements and other materials critical of SOCE from the same associations cited in California’s law (described above).

The Maryland bill’s preamble also declares that the state “has a compelling interest in protecting the physical and psychological well-being of minors and in protecting minors against exposure to serious harm caused by sexual change efforts [sic].” (See the description of California’s law for an explanation of this provision.)

(Click on one of the following links to jump to the beginning of the section on California, Maryland, New Jersey or Washington.)

New Jersey’s Assembly Bill 3371:
The Nation’s Second SOCE Law

AB 3371’s history and full text:

In the summer of 2013, the New Jersey legislature overwhelmingly approved Assembly Bill 3371 and Governor Chris Christie signed it into law, making New Jersey the second state to enact legislative restrictions on SOCEs.

The law’s opponents promptly filed a constitutional challenge. A federal district court rejected the challenge, and the losing party appealed to the federal Third Circuit Court of Appeals, which has yet to decide the case. In November 2013, opponents filed a second, separate federal complaint challenging the law; that case was transferred to the same district court judge who decided the first case. She has not yet ruled on the second challenge.

Click here for the full text of New Jersey’s SOCE law, Assembly Bill 3371.

The prohibition:

New Jersey’s law provides that licensed professional counselors “shall not engage in sexual orientation change efforts with a person under 18 years of age.”

How the New Jersey law defines SOCE:

The law defines “sexual orientation change efforts” to mean “the practice of
seeking to change a person’s sexual orientation, including, but not limited to, efforts to
change behaviors, gender identity, or gender expressions, or to reduce or eliminate sexual or
romantic attractions or feelings toward a person of the same gender.” Note that unlike the law in California and unlike the bill in Maryland, New Jersey’s law explicitly includes “gender identity” in addition to “sexual orientation” and “gender expression[].”

To prevent misapplications, New Jersey’s law also clarifies that the definition of SOCE does not include the following:

(A) “counseling for a person seeking to transition from one gender to another, or”

(B) “counseling that: (1) provides acceptance, support, and understanding of a person or facilitates a person’s coping, social support, and identity exploration and development, including sexual orientation-neutral interventions to prevent or address unlawful conduct or unsafe sexual practices; and (2) does not seek to change sexual orientation.”

To whom the New Jersey law applies:

The law only applies to certain professional counselors, namely, those who are “licensed to provide professional counseling under Title 45 of [New Jersey’s Revised Statutes, available here].” The law specifies that professionals covered by the law include “a psychiatrist, licensed practicing psychologist, certified social worker, licensed clinical social worker, licensed social worker, licensed marriage and family therapist, [or] certified psychoanalyst,” as well as “a person who performs counseling as part of the person’s professional training for any of these professions.”

Provision on violations:

The New Jersey SOCE law does not itself specify any concrete consequences for violations. However, the parties to one of the lawsuits challenging the law—including the plaintiffs opposing the law, the intervenor-defendant Garden State Equality, and the New Jersey government—have agreed in their legal briefs (here, here and here) that New Jersey’s laws and regulations allow for professional sanctions to be imposed on those who violate the law. The New Jersey government’s brief, for example, explains that the SOCE law forms part of a “comprehensive regulatory framework” under which certain professional oversight boards have “investigative and enforcement authority … for license revocation, suspension and disciplinary proceedings.”

Purpose and other provisions:

The New Jersey law’s lengthy opening sections set forth legislative findings and statements of purpose that are virtually identical, word for word, to the opening provisions in California’s law, described above.

(Click on one of the following links to jump to the beginning of the section on California, Maryland, New Jersey or Washington.)

Washington State’s House Bill 2451:
Moving Toward Passage?

House Bill 2451’s history and full text:

Washington State House Bill 2451, which restricts the practice of SOCE on minors, was introduced last month and has already passed the state’s House of Representatives by a lopsided 94-4 vote. The bill now moves to the state’s senate, where the Committee on Health Care has scheduled a hearing for February 20.

Click here for the full text of Washington State’s proposed SOCE legislation, House Bill 2451.

Note that while opponents of SOCE laws in California and New Jersey mounted federal legal challenges to the laws in those states, the legal options for opponents of Washington’s bill will likely be more limited if the bill becomes law. The federal Ninth Circuit Court of Appeals has jurisdiction over Washington State, and it has already rejected a constitutional challenge to California’s SOCE law. It’s tough to see how a federal challenge against Washington’s legislation could prevail in light of the Ninth Circuit’s ruling with respect to California. Opponents of Bill 2451 might, however, file a challenge under state law, or perhaps a federal challenge under legal theories that the Ninth Circuit’s ruling did not address. It’s also still possible that the Supreme Court will hear an appeal of the Ninth Circuit’s decision.

The prohibition:

House Bill 2451 provides that it is “unprofessional conduct” for certain state-licensed professionals to “[p]erform[] sexual orientation change efforts on a patient under age eighteen.”

How the Washington bill defines SOCE:

The Washington bill’s definition is virtually identical to definitions in other states: “‘Sexual orientation change efforts’ means a regime that seeks to change an individual’s sexual orientation. The term includes efforts to change behaviors or gender expressions, or to eliminate or reduce sexual or romantic attractions or feelings toward individuals of the same sex.”

Like the bills and laws discussed above, the Washington bill makes clear that its SOCE definition does not include (and that the bill’s prohibitions do not encompass) “psychotherapies that (i) provide acceptance, support, and understanding of clients or the facilitation of clients’ coping, social support, and identity exploration and development, including sexual orientation-neutral interventions to prevent or address unlawful conduct or unsafe sexual practices; and (ii) do not seek to change sexual orientation.”

To whom Washington’s bill applies:

The bill applies to those who hold a state license under Chapter 18.130 of Washington’s Statutory Code, which regulates “health professions” and covers a broad range of health practitioners, including psychologists, marriage and family therapists, mental health counselors and social workers.

Provision on violations:

House Bill 2451 provides that “[a] mental health care practitioner who engages in sexual orientation change efforts with a patient who is a minor shall be considered to have engaged in unprofessional conduct and shall be subject to discipline by the health care practitioner’s licensing board.”

Exclusions:

To clarify the scope of the law, the bill contains a provision explaining that its prohibition does not apply to certain kinds of expression, including some religious counseling. This provision is arguably superfluous in light of the restrictions that are already built into other parts of the bill. But the exclusion provision may be useful insofar as it provides additional clarification and guidance to anyone who might consider engaging in SOCEs. The provision states:

This [law] may not be construed to apply to: (1) Speech that does not constitute performing sexual orientation change efforts by licensed health care providers on patients under age eighteen; (2) Religious practices or counseling under the auspices of a religious denomination, church, or organization that do not constitute performing sexual orientation change efforts by licensed health care providers on patients under age eighteen; and (3) Nonlicensed counselors acting under the auspices of a religious denomination or church.

Purpose and other provisions:

The Washington bill contains opening provisions regarding its purposes, but these provisions are not nearly as lengthy or detailed as the opening provisions in other states’ SOCE legislation. The lack of a long preamble likely makes no difference, as legislative declarations of purpose typically don’t have much practical effect.

The opening provisions provide as follows:

(1) The legislature intends to regulate the professional conduct of licensed health care providers with respect to performing sexual orientation change efforts on patients under age eighteen. Licensed health care providers may discuss sexual orientation change efforts with patients under the age of eighteen, provided that such discussions do not constitute the performance of sexual orientation change efforts.

(2) The legislature finds and declares that Washington has a compelling interest in protecting the physical and psychological well-being of minors and in protecting its minors against exposure to serious harms caused by sexual orientation change efforts, while maintaining a patient-driven process.

(Click on one of the following links to jump to the beginning of the section on California, Maryland, New Jersey or Washington.)

Commentary & Resources

Links to interesting and useful commentary and resources:

  • Protecting the Speech We Hate (Paul Sherman and Robert McNamara in the New York Times, arguing that California’s SOCE ban “would undermine free-speech protections entirely”)

And Finally, Some Related Youth Allies Posts from 2013

MK

Follow Youth Allies on Facebook, Twitter & Google Plus.

Filed Under :

Tagged With :