By: Melanie Griffith, Volume 104 Staff Member
The tides are turning on the trend of conversion therapy bans. Conversion therapy is a controversial practice that purports to “cure” homosexual or transgender individuals by attempting to change their sexual orientation or gender identity. Therapists use methods ranging from aversion therapy and shock therapy to seemingly-benign talk therapy. Almost 700,000 LGBT adults in the United States ages 18 to 59 have experienced conversion therapy, and about half of those were subjected to it as a minor.
However, the practice has been denounced by many health organizations as ineffective and potentially harmful. Consequently, eighteen U.S. states and about a dozen major cities have passed laws to protect minors from conversion therapy. Most of these bans were enacted pursuant to the government’s “police power” to protect citizens’ health, safety, and welfare, with conversion therapy couched in terms of being inimical to the health and welfare of minors.
Even though the proposition to protect minors seems universally appealing, the bans have been challenged by therapists and religious leaders. Initial challenges on grounds of freedom of speech and religion were unsuccessful; the Third and Ninth Circuits have upheld New Jersey’s and California’s bans, respectively. Recently, though, several bans have been challenged on renewed arguments for free speech after a Supreme Court decision potentially altered the level of scrutiny applied to such laws. Earlier this month, on October 4, 2019, Tampa’s ban was deemed unconstitutional by a federal district court, the first in the nation to be struck down. New York City will likely be repealing its ban, reportedly due to fear of losing a constitutional challenge. This unsettled area of law calls into question the level of scrutiny that applies to conversion therapy bans, the constitutionality of such bans, and how cities might survive preemption challenges.
I. THE SAFE ZONE: HOW CONVERSION THERAPY BANS WITHSTOOD CONSTITUTIONAL SCRUTINY
In Pickup v. Brown, the Ninth Circuit held that California’s conversion therapy ban regulated professional conduct, not speech, and was therefore subject only to rational basis review. The court focused on the essence of conversion therapy as treatment, since the effect on speech was merely “incidental.” Because conversion therapy was not deserving of special First Amendment protection as speech, the government needed only to show that the ban was rationally related to a legitimate governmental purpose.
II. THE DANGER ZONE: WHY CONVERSION THERAPY BANS ARE AT RISK OF BEING STRUCK DOWN
A. Professional Conduct is Not Exempt from First Amendment Challenges
A major shift in the First Amendment analysis of professional conduct occurred in the Supreme Court’s decision in NIFLA v. Becerra. In deciding that disclosure requirements for crisis pregnancy centers were content-based regulations of speech and therefore subject to strict scrutiny, the Court negated the idea that professional speech was a distinct category from other types of speech. Importantly, though, the Court recognized two exceptions to the strict scrutiny requirement: commercial speech and professional conduct that incidentally involves speech. First, commercial speech relates to the compelled disclosure of “factual and uncontroversial information.” The disclosure requirements at issue in NIFLA did not relate to the services provided by the clinic but those by the state, including abortion—hardly an “uncontroversial” subject. Second, professional conduct relates to the practice of the profession. The Court found the disclosure requirements were not professional conduct: they were “not tied to a procedure at all” and so regulated “speech as speech.” The Court’s decision in NIFLA enhanced the limitations on state regulation of professionals, but there are hints that courts might interpret NIFLA as effectively sealing up the exceptions completely.
B. Cities Face an Additional Hurdle: Preemption
Tampa’s conversion therapy ban was challenged on free speech grounds, and the magistrate judge recommended that it be struck down based on the NIFLA decision. But the court ultimately only decided the narrow question of whether the City of Tampa was preempted from passing an ordinance regulating healthcare professionals because the state had impliedly regulated the entire field of healthcare. The court held that because the city had never before attempted to regulate healthcare, does not have charter or home rule authority to regulate healthcare, and was not aware of any minor being subjected to conversion therapy in the city, it was preempted from enforcing its conversion therapy ban.
III. HOW CONVERSION THERAPY BANS CAN SURVIVE
NIFLA could be distinguished from conversion therapy bans on the facts: it involved disclosure requirements that were unrelated to treatment. The regulation at issue was more akin to “speech as speech,” rather than any conduct on the part of the clinic in treating its patients. Conversion therapy—even “talk therapy”—is clearly treatment. It is why patients (or likely more accurately, their parents) seek out conversion therapy. The bans do not require professionals to engage in a certain type of speech or limit the expression of their views. Therapists are not required to deny the effectiveness of conversion therapy techniques; in theory, they could extol the benefits as much as they wanted. The bans only limit the practice of conversion therapy, not any speech about its characteristics.
The preemption argument decided the case for the Vazzo plaintiffs. However, because state regulations vary, this outcome could have been different if it had been set in another state with a different statutory scheme (and perhaps a judge with a different view of field preemption). Regardless, the Vazzo decision does not foreclose states from surviving challenges to conversion therapy bans.
Conversion therapy bans send a message to LGBT youth: “Our state (or city) does not see you as ‘sick’ and in need of a cure. We will not allow practitioners to attempt to change you, even if your parents want them to. We see you, and we will protect you from this harmful practice.” Even if enforcement of the bans is low, cities should continue fighting challenges to allow their bans to stand. Of course, once state bans become more widespread, cities’ bans will become moot. But that doesn’t mean they shouldn’t keep working to enact and defend their conversion therapy bans. The decision striking down Tampa’s ban does not guarantee similar results for other cities. Because it was decided on a preemption basis, other cities may have good arguments that their states have not preempted the field of healthcare regulation. The wellbeing of LGBT youth urges such a fight.
Conversion Therapy, GLAAD, https://www.glaad.org/conversiontherapy?response_type=embed [https://perma.cc/49R9-PZG7] (last visited Oct. 15, 2019). Conversion therapy is also sometimes referred to as “reparative therapy” or “sexual orientation change efforts (SOCE),” though “conversion therapy” is the most prevalent term used to describe the practice. Id.
See James Michael Nichols, A Survivor of Gay Conversion Therapy Shares His Chilling Story, HuffPost (Nov. 17, 2016, 11:05 AM), https://www.huffpost.com/entry/realities-of-conversion-therapy_n_582b6cf2e4b01d8a014aea66 [https://perma.cc/T62J-N2RH] (describing an individual’s experience with conversion therapy as “literal torture”).
Christy Mallory et al.,Conversion Therapy and LGBT Youth 1(2018), https://williamsinstitute.law.ucla.edu/wp-content/uploads/Conversion-Therapy-LGBT-Youth-Jan-2018.pdf.
See, e.g., APA Reiterates Strong Opposition to Conversion Therapy, Am. Psychiatric Ass’n(Nov. 15, 2018), https://www.psychiatry.org/newsroom/news-releases/apa-reiterates-strong-opposition-to-conversion-therapy [https://perma.cc/LW8L-W9FK] (stating that there is no evidence that sexual orientation change efforts are effective and arguing that they “represent a significant risk of harm”); AMA & GLMA, Issue Brief: LGBTQ Change Efforts (“Conversion Therapy”)2 (2019), https://www.ama-assn.org/system/files/2019-03/transgender-conversion-issue-brief.pdf (“All leading professional medical and mental health associations reject ‘conversion therapy’ as a legitimate medical treatment.”).
See Conversion Therapy Laws, Movement Advancement Project, https://www.lgbtmap.org/equality-maps/conversion_therapy [https://perma.cc/QWP3-ZP7G] (last visited Oct. 15, 2019) (documenting the enactment of conversion therapy bans throughout the U.S. as of October 2019). The movement had recently been gaining steam, with half of the state bans passing within the last two years. See id.
States’ police power is rooted in the Tenth Amendment. See U.S. Const. amend. X (“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”).
E.g., Seattle, Wash., Mun. Code § 14.21.020 (2019).
See, e.g., Vazzo v. City of Tampa, No. 8:17-CV-02896, 2019 WL 4919302 (M.D. Fla. Oct. 4, 2019) (plaintiff-therapist).
Pickup v. Brown, 740 F.3d 1208, 1225 (9th Cir. 2014), abrogated by Nat’l Inst. of Family & Life Advocates v. Becerra, 138 S. Ct. 2361 (2018) [hereinafter NIFLA].
King v. Governor of N.J., 767 F.3d 216, 241 (3d Cir. 2014), abrogated by NIFLA.
NIFLA, 138 S. Ct. 2361.
Vazzo, 2019 WL 4919302, at *1.
Jeffery C. Mays, New York City Is Ending a Ban on Gay Conversion Therapy. Here’s Why., N.Y. Times(Sept. 12, 2019) https://www.nytimes.com/2019/09/12/nyregion/conversion-therapy-ban-nyc.html [https://perma.cc/77AY-VLD5]. Because New York passed a state-wide ban earlier this year, New York City’s repeal will have little practical effect on the practice of conversion therapy in the city. Id.
Pickup v. Brown, 740 F.3d 1208, 1225 (9th Cir. 2014). Though the court dealt with several other arguments against the ban, the main shift in the jurisprudence relates to free speech.
Id. at 1231.
Id. at 1230–31. The court found that the state’s purpose in protecting minors was a “legitimate state interest” and concluded that the legislature’s reliance on the medical community’s objection to conversion therapy was rational. Id. at 1231–32.
NIFLA v. Becerra, 138 S. Ct. 2361 (2018).
Id. at 2371. The Court specifically called out Pickupand Kingas examples of cases that deviated from the Court’s ruling in NIFLA.
Id. at 2372.
Id. at 2373.
Id. at 2373–74.
See, e.g., Report & Recommendation at 25, Vazzo v. City of Tampa, No. 8:17-CV-02896, 2019 WL 4919302 (M.D. Fla. Oct. 4, 2019).
Report & Recommendation, supra note 24.
Vazzo, 2019 WL 4919302, at *4.
Id. at *1.
See generally Lara Korte, Want to Complain About LGBT Conversion Therapy in Cincinnati? It Isn’t Easy, Cincinnati.com(July 31, 2017), https://www.cincinnati.com/story/news/2017/07/31/want-complain-lgbt-conversion-therapy-cincinnati-isnt-easy/468002001/ (discussing Cincinnati’s lack of complaints after enacting a conversion therapy ban).