Law & Psychiatry: Regulating Psychotherapy or Restricting Freedom of Speech? California’s Ban on Sexual Orientation Change Efforts

The core of the challenges brought by the plaintiffs in the two requests for preliminary injunctions is that psychotherapy is a form of speech and hence should be protected by constitutional restrictions on laws that limit speech. Although the government can restrict speech in some circumstances—the classic example is prosecution of someone who maliciously shouts “Fire!” in a crowded theater—such laws are subject to the highest level of scrutiny by the courts. To pass muster, laws restricting speech must be justified by a compelling governmental interest, be narrowly tailored to protect that interest, and be the least restrictive means of doing so. Moreover, they cannot discriminate against the particular content of speech or a given point of view. If psychotherapy is legally a form of speech, laws aimed at restricting its use would be difficult to defend.

In response, the State of California claimed that the SOCE statute should not be seen as regulation of speech but as one of many ways that it regulates the practices of the health professions. States can establish requirements for licensure, mandate that health professionals report child abuse, and even require disclosure of certain information to patients. Several states, for example, have required physicians who perform abortions to inform patients about possible negative consequences for their health, a practice upheld by the U.S. Supreme Court (4). With regard to the SOCE statute, the state argued, the legislature had made a determination that therapies to change sexual orientation were unlikely to be successful and, moreover, could harm the patients who were subjected to them. Thus it had a legitimate interest in restricting these practices. If the law banning SOCE is a regulation of mental health practice rather than speech, the court would use a much less rigorous standard of review, having only to inquire whether the state has a rational basis for the restriction.

As the plaintiffs noted, though, even regulations nominally targeting the behavior of health professionals could run afoul of constitutional limitations if the regulations had the effect of precluding them from engaging in protected speech with patients. Thus the Ninth Circuit itself had struck down—on First Amendment grounds—a federal policy that barred physicians from recommending the use of medical marijuana to their patients at the risk of having their privileges to prescribe controlled substances revoked (5). As another example, a federal district court in Florida struck down a state law preventing physicians from inquiring whether patients had guns in the house, also on freedom of speech grounds (6). Hence, the plaintiffs urged the courts to look beyond the state’s claim that it was regulating only mental health practice and to recognize that the law actually barred certain forms of protected speech.

In addition to arguing that therapies targeting changes in sexual orientation should be protected as forms of speech, the therapists, parents, and patients challenging the statute claimed that it interfered with the rights of parents to determine appropriate treatment for their children. Parental control over the rearing of their children, including their education and religious upbringing, has been recognized as a fundamental right guaranteed by the constitutional doctrines of substantive due process and freedom of religion (7,8). Moreover, parents are entrusted with decisions about children’s medical treatment, except in rare cases where parental choices are likely to lead to significant harm, for example, refusal of blood transfusion among Jehovah’s Witnesses (9). Here as well, argued plaintiffs, parents should have the right to determine that a same-sex sexual orientation is not in their child’s interest—for example, when it conflicts with the family’s religious beliefs—and to select a treatment aimed at changing that orientation.

While acknowledging a broad scope of parental rights, the state responded that such powers were not unlimited. For example, parents could not select a medication for their child that the United States Food and Drug Administration had not determined to be safe and effective. As the district court that rejected the request to enjoin the statute put it, “There is no fundamental or privacy right to choose a specific mental health treatment the state has reasonably deemed harmful to minors” (3). Thus the question of parental rights, as well as whether the state had a rational basis for regulating SOCE in the first place, came down to the question of the likelihood that it would harm the minors who participated in it.

Passing the statute, the California legislature had relied on a 2009 task force report by the American Psychological Association, which thoroughly reviewed the literature on SOCE (10). The task force concluded that despite anecdotal reports of efficacy, there were no scientifically valid studies demonstrating that the therapies successfully changed sexual orientation. As the authors wrote, “Given the limited amount of methodologically sound research, we cannot draw a conclusion regarding whether recent forms of SOCE are or are not effective.” Similarly, although some patients claimed to have been harmed by SOCE—particularly when aversive therapies (not at issue in these cases) were used—again, reliable evidence of the frequency and seriousness of harm was absent. The state argued that the absence of benefit and the possibility of harm, along with the widespread rejection of therapies aimed at changing sexual orientation by organizations of mental health professionals, justified the legislature’s action. Looking at the same evidence, the plaintiffs rejoined that a likelihood of harm had not been proven, and in that circumstance it should be up to parents and the minors themselves to determine whether to seek the treatment.

The losing party in each of the federal district court cases appealed the decision to the federal Court of Appeals for the Ninth Circuit. In the course of its opinion in the case, Pickup v. Brown, the court considered the underlying constitutional questions (11). Rejecting all of the plaintiffs’ claims, a unanimous three-judge panel held that the SOCE statute regulated conduct and not speech. The court analogized to an earlier decision upholding a California law that barred the practice of psychoanalysis by unlicensed therapists (12). Although psychoanalysis involves speech, its practice constitutes conduct, and it is that conduct that the law in the earlier case was designed to regulate. Similarly in this case, the panel held, California has the power to regulate the conduct of psychotherapy without infringing on therapists’ or patients’ rights to freedom of speech.

Having established that First Amendment rights were not at issue, the court merely needed to find that the state had a rational basis for precluding SOCE. It identified a rational foundation for the law in the legislature’s assertion that it was acting to protect “the physical and psychological well-being of minors, including lesbian, gay, bisexual and transgender youth, and [to protect] its minors against exposure to serious harms caused by sexual orientation change efforts.” In light of the widespread rejection of SOCE by organizations of mental health professionals, the court held, even anecdotal accounts of harm to patients constitute a sufficient basis for the state to bar therapies intended to change sexual orientation. And because the legislature reasonably concluded that the therapies were harmful, there was no enforceable parental interest in selecting them for their children. On these and other grounds, the court concluded that the statute banning SOCE by licensed therapists did not violate any constitutional proscription.

Even as the parties to the decision in Pickup await the Ninth Circuit’s decision about whether it will rehear the case en banc (with 11 of the circuit’s judges participating), the three-judge panel’s decision has attracted both praise and criticism. Advocates for gays and lesbians hailed the outcome as a victory against forces that seek to portray their sexual orientations as pathologic and hence in need of treatment (13). Libertarians criticized the court’s refusal to recognize that psychotherapy is a form of protected speech, fearing that the decision would open the door to regulation of other types of speech, such as professors’ lectures or political consultants’ advice, by recharacterizing them as conduct, too (14).

Mental health professionals, for their part, might well feel ambivalent about the outcome. There is no reason to believe that psychotherapies aimed at changing sexual orientation have been or are likely to be successful, and most mainstream therapists would no longer undertake therapy with such a goal. But minors and their parents in California will continue to be free to seek SOCE from unlicensed therapists, and thus minors may still be subject to whatever negative consequences such efforts produce. So the direct impact of the California statute is likely to be limited. However, the law banning licensed therapists from engaging in SOCE marks the first time that any state has restricted the practice of a specific psychotherapy. Moreover, California has done so with only anecdotal evidence of harm—and anecdotes of that sort might be recruited for many forms of therapy (and indeed most medical treatments). Should other types of psychotherapy fall into disfavor, they, too, could be at risk of being prohibited under the rationale used to ban the practice of SOCE.

If SOCE is in fact harmful to patients, there is another option for discouraging its use that doesn’t have the liabilities attending an outright ban. A mental health professional who engages in a form of therapy without any reliable evidence of efficacy—especially when it has been rejected by every major professional group—and thereby causes harm to a patient can rightly be sued for malpractice. A very small number of adverse judgments is likely to be sufficient to persuade most practitioners of SOCE to desist from its use. The California legislature might have been wiser to abstain from legislating on this issue and to allow the tort system, a very effective means of regulating medical and mental health practice, to run its course. Since it chose to act, however, time will tell whether the consequences of the SOCE statute confirm the fears of its critics.

The author reports no competing interests.