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Regulating sexual orientation change efforts: the California approach, its limitations, and potential alternatives.

INTRODUCTION
I. SB 1172'S ASSUMPTIONS ABOUT THE HARMFULNESS OF SEXUAL
   ORIENTATION CHANCE EFFORTS
    A. Causing or Exacerbating Diagnosable Psychological Harm
    B. Reinforcing Stigma and Impeding Personal Development
II. PROBLEMS WITH THE SB 1172 APPROACH
     A. SB 1172 Assumes and Normalizes an Essentializing Conception of
        Sexual Orientation
     B. SB 1172 Is Particularly Vulnerable to First Amendment
        Challenges
     C. SB 1172 Could Foment Political Backlash
III. AN ALTERNATIVE: DECEPTIVENESS-BASED REGULATION
     A. SOCE's Ineffectiveness and the Case for Deception
     B. A Deceptiveness-Based Approach to Regulating SOCE: California
        as a Case Study
        1. Deceptive Advertising
        2. Making Unrealistic Promises to a Patient
        3. A Note on the Potential for a Minors-Specific Approach
        4. The Practicalities of Targeting SOCE Through an Anti-
           Deception Regime
    C. Benefits of an Anti-Deception Approach
       1. This Approach Does Not Require the State to Adopt and Impose
          Definitions of Sexual Identity
       2. This Approach Would Not Lead to Substantial First Amendment
          Litigation
       3. This Approach Would Be Less Politically Contentious Since It
          Avoids Implicating a "Parental Rights" Narrative
    D. Objections
CONCLUSION


INTRODUCTION

In September 2012, the California legislature passed Senate Bill 1172 (SB 1172), which prohibits licensed psychotherapists from engaging in "sexual orientation change efforts" (SOCE) with minor patients. (1) This unprecedented statute aims to prevent any mental health professional from using techniques--commonly known as "conversion therapy" or "reparative therapy"--that attempt to eliminate homosexual attraction or foster heterosexual attraction when treating a minor patient. (2)

The passage of SB 1172 adds a new dimension to mainstream psychotherapy's complicated relationship with sexual orientation. As many scholars have pointed out, the majority of psychiatrists and psychologists once believed that same-sex attraction could be "cured" through psychotherapeutic intervention. (3) However, since homosexuality was removed from the Diagnostic and Statistical Manual of Mental Disorders in 1973, (4) the mainstream mental health establishment (5) has come to view homosexuality and bisexuality as benign, encouraging therapists to engage in practices that "affirm" a patient's sexual orientation. (6)

At the same time, several groups (7) have continued to insist that sexual orientation can be changed through therapy. (8) These "ex-gay" organizations, and therapists affiliated with them, continue to provide SOCE therapy and often market these services to minors from religious communities. (9) In the last several years, the mental health establishment has become increasingly concerned with these practices and has issued reports concluding that SOCE is ineffective and potentially harmful. (10) Lesbian, gay, and bisexual (LGB (11)) rights organizations have also begun publicly documenting the stories of individual patients subjected to SOCE practices, many of whom describe their treatments as emotionally or sexually abusive. (12)

The California legislature adopted SB 1172 in response to these new reports of SOCE's potential harmfulness, pointing to the state's "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." (13) The legislation establishes that using SOCE therapy on a minor is "unprofessional conduct," (14) which provides grounds for a therapist to lose his license. (15) LGB rights groups, especially Equality California, were instrumental in galvanizing the state to act, and also framed the legislation as part of a broader effort to "protect and empower" LGB youth. (16) This strategy of seeking legislation that bans the use of SOCE therapy on minors has now become appealing to LGB rights groups nationwide. In response to lobbying efforts, legislators in New York, Pennsylvania, and Massachusetts have proposed legislation that bans the use of SOCE on minors. (17) And New Jersey recently passed a ban modeled directly after SB 1172. (18)

But activists and lawmakers should exercise caution before rushing to copy California's legislation. This Note argues that even those opposed to the use of SOCE should recognize the limitations of employing targeted legislation to ban the use of any SOCE practice on minors. (19) While California's willingness to intervene on behalf of LGB youth is commendable, the regulatory strategy employed in SB 1172 carries a range of presumably unintended consequences: it reinforces an essentializing conception of sexual identity; it is particularly amenable to First Amendment challenges since it treads on ill-defined areas of First Amendment law; and it has the potential to generate political backlash by feeding into historically pervasive anti-gay narratives.

Furthermore, the SB 1172 approach is not the only way for activists and legislators to successfully curtail SOCE. This Note proposes an alternative strategy that might bring about the same goal as SB 1172--namely, preventing SOCE practitioners' access to LGB youth-using another area of law: anti-deception statutes of general applicability. Since the mental health establishment has concluded that SOCE is ineffective in changing sexual orientation, SOCE therapists' activities could be actionable under state laws that prohibit licensed professionals from engaging in deceptive or misleading practices. California, which the Note uses as a case study, has long prohibited mental health professionals from malting deceptive claims, and the regulatory system that implements these requirements could potentially be used to challenge SOCE practitioners. An anti-deception approach to curtailing SOCE could represent a promising alternative or supplement to the SB 1172 approach in all states, but especially in states whose legislatures are unwilling to pass full bans.

This Note proceeds in three Parts. Part I provides background on SB 1172 and explores the understandings of SOCE's harmfulness that seem to underlie the legislation. This Part argues that SB 1172's conception of SOCE's harmfulness is partially grounded in the mental health establishment's conclusions, derived from clinical studies, but also stems from a more ideologically driven understanding of LGB identity. Part II raises three separate but interrelated problems with the legislation's broad view of the state's interest in regulating SOCE. First, SB 1172 rests on assumptions about LGB identity that do not necessarily capture the full range of individuals' conceptions of their sexual orientations. By imposing these assumptions on patient-therapist relationships, SB 1172 could potentially interfere with some benign, non-SOCE therapeutic practices and, more generally, could feed the persistent marginalization of groups who fall outside the mainstream discourse on sexual orientation. Second, the legislation implicates an ill-defined and controversial area of First Amendment doctrine: the scope of protection for "professional speech." Though the Ninth Circuit recently affirmed the constitutionality of SB 1172, this result rested on some precarious assumptions about SOCE. There are no guarantees that other courts will follow suit when addressing similar bans. (20) And third, SB 1172 risks fostering political backlash by playing into a persistent and politically powerful narrative that frames LGB rights in opposition to "parental rights."

Part III examines potential alternative strategies for limiting SOCE practitioners' access to patients that focus on the deceptive promises made by most SOCE practitioners regarding the effectiveness of psychotherapeutic intervention in changing sexual orientation. Despite the fact that SOCE is widely considered ineffective, most SOCE practitioners misleadingly hold themselves out as being able to "convert" patients from LGB to heterosexual. These practices could fall under a broader--and, at least in California, already existent--regime that defines deceptive promises made by therapists as unprofessional conduct. Regulating SOCE through such a regime engenders fewer normative or political-strategic concerns and could bring about results similar to those of a targeted ban like SB 1172.

I. SB 1172'S ASSUMPTIONS ABOUT THE HARMFULNESS OF SEXUAL ORIENTATION CHANCE EFFORTS

In passing SB 1172, the California legislature explicitly stated that its goal was "protecting ... minors against exposure to serious harms caused by sexual orientation change efforts." (21) A report issued by the California Senate Rules Committee during the negotiations surrounding SB 1172 clarified this rationale: "[T]he intent of this bill is to limit deceptive therapies that are harmful to minors by mental health providers. This bill seeks to provide awareness of the alternatives to and the potential harmful effects of sexual orientation change therapies while also protecting children from these treatments." (22) According to the legislation, the state's "compelling interest" in protecting children from these harms warranted a full ban on any attempt to use SOCE practices on minor patients. (23)

While California framed its interest in regulating SOCE as preventing "harm" to minors, understanding the precise nature of this harm requires further analysis. This Part analyzes the legislation and its history to identify the types of harm that seemed to be of concern to the California legislature. This Part also examines the degree to which the mental health establishment's clinical studies, as well as other academic literature, support the conclusion that SOCE is harmful in the ways identified in the legislation.

The types of harm recognized by SB 1172 can be broken down into two categories. First, SOCE causes or exacerbates clinically demonstrable psychological disorders, such as anxiety, depression, and suicidal behavior--what the mental health professionals might call "iatrogenic effects" of SOCE treatments. (24) Second, SOCE represents an inherently homophobic attack against an LGB patient that leads to internalization of stigma and impedes development of a positive LGB identity. The recognition of this second effect as a harm is more explicitly premised on a set of ideological assumptions about same-sex attraction, rather than clinically demonstrable scientific evidence. These two types of harm are not explicitly identified as separate categories in the text of SB 1172, nor are they mutually exclusive. But recognizing these harms as distinct from one another is necessary to understanding the state's potential role in regulating SOCE, as well as the problems with SB 1172's approach, which are explored in the next Part.

Before addressing these two types of harm, it is important to settle on a definition of what types of "therapies" can be classified as SOCE to begin with. While noting that SOCE may include a range of different psychological tools, including "aversive treatments such as electric shock or nausea inducing drugs administered simultaneously with the presentation of homoerotic stimuli ... [or] visualization, social skills training, psychoanalytic therapy, and spiritual interventions," (25) the California legislature ultimately chose to ban "any practices by mental health providers that seek to change an individual's sexual orientation." (26) This definition would include both physical interventions, like electroshock therapy, and pure "talk therapy," like psychoanalysis. This broad definition of SOCE is generally in keeping with the approach of organizations like the American Psychological Association (APA), which has treated SOCE as a cohesive category that encompasses any attempt by a mental health professional to change sexual orientation. (27) However, as explained further below, the distinction between practices like aversion therapy and exclusively verbal methods (like psychoanalysis) is significant in exploring the degree to which SOCE's harmfulness is supported by clinical evidence.

A. Causing or Exacerbating Diagnosable Psychological Harm

Section 1 of SB 1172 lists the harmful psychological effects of SOCE treatment that, according to recent research, provide a compelling case for the ban. It states that recent reports have clearly established that SOCE's therapies pose "critical health risks to lesbian, gay, and bisexual people." (28) These health risks include the development of diagnosable psychological disorders such as "depression" and "anxiety" as well as "suicidality, substance abuse, ... sexual dysfunction," and more. (29) But the claim that SOCE therapy can cause or exacerbate diagnosable psychological disorders like general anxiety disorder or clinical depression--the "iatrogenic effects" of psychotherapeutic interventions (30)--is only partially supported by recent reports from the mental health establishment.

As the legislation explains, several types of therapy sometimes used by SOCE practitioners are physically invasive, including electroshock therapy, psychosurgery, use of psychotropic drugs or hormones, or general aversion techniques (such as using painful electric currents or nausea-inducing drugs on a patient while he is exposed to homoerotic images). (31) The harmfulness of these physically invasive forms of SOCE is well documented. For example, the 2009 APA report, which surveyed all existing peer-reviewed, clinical-study-based literature on SOCE, pointed to compelling clinical evidence (32) that aversive techniques "cause inadvertent and harmful mental health effects such as increased anxiety, depression, suicidality, and loss of sexual functioning." (33) These conclusions are also reflected in the numerous anecdotes, many now available online, that describe SOCE patients' experiences with aversion therapy. One former patient describes becoming suicidal after going through therapy in which ice, hot coils, and electric currents were placed on his skin while he watched homoerotic images. (34) Even some courts and legislatures have begun to recognize the harmfulness of physically invasive forms of SOCE therapy. For example, the Ninth Circuit once described a SOCE treatment that prescribed the use of sedative drugs as akin to torture. (35) And many states now regulate the use of treatments like psychosurgery on minors across the board. (36)

However, the risks of SOCE methods that exclusively involve "talk therapy"--including therapies grounded in psychoanalysis or in religious traditions, which are by far the most common types of SOCE therapies used today (37)--are less clearly documented in the psychological literature. In recent years, the mental health establishment has explored the potential dangers of all forms of SOCE, including talk therapy, but come to mixed conclusions. Most significantly, the 2009 APA report concluded that while there is some, primarily anecdotal, evidence that any form of SOCE has iatrogenic effects, "[e]arly and recent research studies provide no clear indication of the prevalence of harmful outcomes among people who have undergone efforts to change their sexual orientation." (38) While some anecdotal evidence demonstrates that even SOCE talk therapy can lead to psychological harm, (39) the APA report states that, due to the absence of rigorous clinical evidence, "we cannot conclude how likely it is that harm will occur from SOCE." (40)

Thus, the evidence makes a compelling case for the state's interest in regulating physically invasive forms of SOCE (such as aversion therapy), which have been demonstrated to lead to marked psychological harm. However, the dearth of evidence that all forms of SOCE therapy (including talk therapy) cause or exacerbate diagnosable psychological conditions makes it difficult to rationalize a ban on any attempt by a therapist to change a minor patient's sexual orientation on grounds of psychological harm alone. Perhaps for that reason, the proponents of SB 1172 relied on a more expansive understanding of "harm"--beyond scientifically demonstrable iatrogenic effects--in justifying the legislation. The next Section explores this broader conception of the harm inflicted by SOCE.

B. Reinforcing Stigma and Impeding Personal Development

The text of SB 1172 demonstrates that the California legislature also understood SOCE as implicating a second, more ambiguous type of harm: impeding the full individual self-realization of LGB patients by reinforcing stigma and self-hatred. The legislation is predicated on the assumption that "[b]eing lesbian, gay, or bisexual is not a disease, disorder, illness, deficiency, or shortcoming;" (41) that is, that being LGB is entirely benign and not worthy of psychological intervention. Any attempts to "treat" a non-heterosexual orientation through therapy would then seem to be an illegitimate--perhaps even animus-driven--attempt to stigmatize homosexuality. According to the text of SB 1172, exposing patients to such stigma in the context of a patient-therapist relationship is antithetical to a therapist's true role in "promot[ing] self-acceptance" (42) and stifles the development of a patient's authentic self. The legislation explains that effects such as "decreased self-esteem and authenticity to others, increased self-hatred, ... feelings of anger and betrayal, ... [and] a feeling of being dehumanized and untrue to self' can all emerge from SOCE therapy. (43) The legislation even explicitly clarifies that its restrictions are based on the assumption that a therapist's primary task should be positively affirming a patient's LGB identity, explaining that, under the legislation's definitions, SOCE "does not include psychotherapies that ... provide acceptance, support, and understanding of clients [LGB orientation or] ... identity exploration and development." (44)

While SOCE's iatrogenic harms, described above, are (or at least could be) grounded in clinical studies, conceiving of SOCE therapy as per se harmful because of its role in stigmatizing LGB people requires a more subjective set of assumptions. Indeed, this type of harm may not necessarily be demonstrable through clinical studies at all. Psychologists often speak of "minority stress" or "internalized homophobia" as phenomena that are worthy of psychological attention, but the literature generally treats these phenomena as significant only to the extent they lead to diagnosable mental health effects, such as depression, anxiety, or sexual dysfunction. (45) The APA report, for example, comments on the problem of "stigmatization" in the lives of LGB people (and the potential role of SOCE in furthering this stigma), (46) but mainly points to instances in which stigmatization leads to measurable "negative mental health consequences." (47) In more general terms, assessment of "harm" in the course of psychological treatment is often tied to "symptom worsening [or] the appearance of new symptoms," (48) presumably because such iatrogenic effects can be observed in the course of clinical studies and potentially reproduced in further studies. The notion that stigmatization in the course of therapy is per se harmful, regardless of the development of iatrogenic effects--which is the position that SB 1172 seems to take--would therefore seem difficult to prove solely on the basis of clinical evidence.

This is not to say that there are no compelling arguments that SOCE contributes to the stigmatization of LGB people and is problematic for this reason alone. These arguments, however, generally operate in normative, rather than scientific, terms. For example, Laura Gans has argued that victims of SOCE therapies should have a cause of action under the tort of "intentional infliction of emotional distress" under the theory that SOCE therapy can be considered harmful because of the very "outrageousness" of the claim that non-heterosexual orientations should be "eradicate[d]." (49) For a therapist to impose this problematic outlook on his patient, in a context in which a therapist should be looking out for the patient's wellbeing, is itself a "homophobic attack" on the patient "under the shameless guise of beneficence." (50)

David Cruz provides a more subtle account of the normative problems posed by a therapist who attempts to change a patient's sexual orientation. Though Cruz does not claim that such acts are harmful enough to warrant a full ban (51) (contrary to the proponents of SB 1172), he does point to the "role of medical authority in pronouncements of homosexuality's pathology" and the "stigmatizing effects" that such authority can have. (52) On this account, for a therapist to question a patient's LGB sexual orientation is inevitably to impose an anti-gay ideological conception of homosexuality on a patient (even if the therapist frames her role as simply providing the patient with a choice between homosexuality and heterosexuality). This is especially problematic because it lends the appearance of objective authority to homophobia. An LGB person may be able to recognize a homophobic attack as ideologically driven when it comes from a peer, but when it comes from an "ostensible medical professional[]" it carries greater potential to define the LGB person's sense of self-worth. (53) Cruz analogizes to the work of Eugenia Kaw, who has studied Asian women who seek cosmetic surgery to make their eyelids look more like those of Caucasian women. Kaw argues that such surgeries are inherently harmful because they '"normalize[]' ... the negative feelings of Asian American women about their features" and, in so doing, reinforce self-hatred. (54) So too in the case of SOCE, the very act of trying to change an LGB person's sexual orientation would seem to normalize society's disapproval of homosexuality, reinforcing self-hatred and impeding the patient's development of a positive LGB identity.

While these arguments may indeed make a compelling case against SOCE, the fact that this stigmatization-based conception of harm is predicated on a set of clearly normative assumptions makes its role in demonstrating California's "compelling interest in protecting the physical and psychological well-being of minors" (55) potentially problematic. While the first type of harm described above--SOCE's iatrogenic effects--is demonstrable through clinical scientific study, (56) all forms of SOCE can only be understood as per se harmful under this second conception of harm if we embrace a set of ideological assumptions about homosexuality, especially its fixedness, its benignity, its easy categorizability, and its status as constitutive of a person's identity. (57) The next Part unpacks some of these assumptions to explore some of the potential drawbacks of SB 1172's approach.

In sum, California's argument for a full ban rests on an amalgam of both clinical evidence of SOCE's harmfulness and a more ideological conception of a therapist's proper role in affirming a patient's sexual orientation in order to avoid stigmatization and allow the patient to develop a fully realized sense of self. Accounting only for clinical evidence of SOCE's harmfulness could, at least at this point, rationalize only a ban on physical interventions like aversion therapy, since the psychological establishment has not yet reached a consensus on whether talk-therapy forms of SOCE are per se harmful. However, by also relying on the stigma-based conception of SOCE's harmfulness, California could rationalize the need for a ban on "any practices by mental health providers that seek to change an individual's sexual orientation." (58) The next Part explains why some of the normative assumptions that inform this second conception of SOCE's harmfulness might nonetheless pose problems for a regulatory regime like SB 1172--both from the standpoint of LGB people who may not share the conception of LGB identity that underlies the regime, and from the perspective of the First Amendment.

II. PROBLEMS WITH THE SB 1172 APPROACH

This Part explores why the strategy that animates SB 1172-using legislation to completely prohibit any attempt by a mental health provider to change a minor patient's sexual orientation--might be problematic, even from the standpoint of those opposed to SOCE. These concerns are offered from several different but interrelated perspectives. From a purely normative perspective, SB 1172 is problematic because it is predicated on a categorizing and essentializing account of sexual orientation and imposes this conception using the power of the state. From a legal perspective, SB 1172 is especially amenable to First Amendment challenges because it prohibits a type of speech on partially ideological grounds. Finally, from a political-strategic perspective, SB 1172 is inexpedient and could easily foment backlash because it may feed popular conceptions of LGB people as "anti-family" by appearing to take away "parental rights." While these three criticisms operate from different vantage points, they seize on two specific aspects of the strategy at play in SB 1172: treating any questioning of a patient's sexual orientation by a therapist as per se harmful, (59) and singling out SOCE for special regulation in the first place. The essentialism and First Amendment critiques focus primarily on the first aspect, and the political backlash critique focuses on the second.

A. SB 1172 Assumes and Normalizes an Essentializing Conception of Sexual Orientation

As discussed in Part I, SB 1172 imposes a blanket ban on any attempt by a licensed therapist to alter a minor patient's sexual orientation. Formulating this ban required the legislature to identify "homosexual," "bisexual," and "heterosexual" as concrete markers of identity--as things that a person must either "be" or not "be." (60) When dealing with a patient, a therapist seemingly must identify the patient as belonging to one of these categories and work only to promote "identity exploration and development," (61) while taking care to avoid forcing a patient into a category to which she does not belong. But this highly categorized and identity-driven conception of sexual orientation may be at odds with many people's personal experiences of sexual orientation. (62) As this Section argues, SB 1172's assumptions about the easy categorizability of sexual orientation, and its broad prohibition of "any practices by mental health providers that seek to change an individual's sexual orientation," (63) are problematic for two reasons. First, the ban may have collateral effects outside its immediate goal of banning SOCE by constraining even a non-SOCE-practicing therapist's ability to fully engage with patients who do not conceive of their sexual orientation in conventional terms. Second, the ban may reinforce a categorized and identity-driven conception of sexual orientation in the contemporary discourse on sexuality, thereby minimizing the experiences of those who fall outside of mainstream definitions of sexual orientation.

While the majority of same-sex-attracted individuals understand their orientation to be a fixed and essential aspect of their personhood, many others do not. (64) The fact that SB 1172 is predicated on the existence of concrete and easily identifiable categories of sexual identity would seem to privilege especially the experiences of gay men over those of lesbians and bisexuals. Recent research has shown that "variability in the emergence and expression of female same-sex desire during the life course" is in fact quite common and that many lesbian-identified women experience their sexuality in more fluid terms than gay men. (65) The persistent understanding of sexuality as easily definable and fixed may be a consequence of treating the experiences of men as paradigmatic and imposing this conception on women. (66) Bisexual experience has been even more marginalized within mainstream discourse on sexuality, a phenomenon often labeled "bisexual erasure." Kenji Yoshino has explored the persistence of bisexual erasure in the law, explaining that even a legal regime that claims to recognize the existence of the category of "bisexual" can still be guilty of bisexual erasure if the regime implicitly operates on the assumption that a person must be either attracted to people of the same gender or people of the opposite gender. (67) SB 1172 seems to provide an example of this phenomenon: while bisexuals are identified for protection in the legislation, along with gays and lesbians, the scheme is still predicated on the assumption that a therapist can easily identify the category to which a person's sexual attraction belongs and thus take steps to affirm (rather than seek to change) the patient's sexual identity. The ambiguity presented by many bisexuals--whose same-sex attraction may be far more context-specific and may ebb and flow over time--would seem to present a quandary for therapists under the regime. Similarly, the regime fails to acknowledge that many--especially younger people--now eschew labels such "gay" or "bisexual" altogether, instead using the umbrella term "queer" to describe anyone who falls outside mainstream expectations of sexuality or gender performance. (68)

In practice, SB 1172 seems to require that a therapist operate under the assumption that every patient can be easily identified under the conventional definitions of lesbian, gay, bisexual, or straight, regardless of whether those categorizations are consistent with the patient's behavior or sense of self. This requirement could impact the ability of even non-SOCE-espousing therapists to fully engage with patients with ambiguous or non-traditional sexual identities. As a hypothetical example, it seems unclear how a therapist, under SB 1172's regime, should react when confronted with a patient who self-identifies as a lesbian but speaks of growing attraction to men and seeks to make sense of these feelings. Attempts by the therapist to encourage this patient's exploration of her heterosexual attraction, despite her avowed lesbian identity, could potentially run afoul of SB 1172's prohibition of "any practices by mental health providers that seek to change an individual's sexual orientation." (69) While SOCE practitioners often employ specific psychotherapeutic techniques in the service of an explicit attempt to change a patient's sexual orientation, (70) "seek to change" is left open-ended in the legislation, and seemingly does not require any specific anti-LGB animus on the part of the therapist. SB 1172's prohibitions thus could potentially cover any statements by a therapist--even innocuous ones--that might lead a patient to change from self-conceiving as one category of sexual orientation to another. Thus, a therapist who said to the questioning lesbian-identified patient described above, "I think you are straight," (or even "I think you are bisexual") could potentially be guilty of unprofessional conduct under the SB 1172 regime. (71)

Generally, we might understand this dilemma as a kind of collateral effect of the state's attempt to regulate the specific (and genuine) harms presented by SOCE. Targeting SOCE through a wide-ranging regime that implicitly requires a therapist to clearly identify a person as belonging to a specific category of sexual orientation, and then to work only to affirm that category, might constrain even a non-SOCE-espousing therapist from grappling with the full range of her patients' experiences of sexual identity. The California legislature presumably did not intend to restrict this kind of benign therapeutic intervention. But its decision to predicate the legislation on the existence of fixed categories of sexual identity that correlate to specific forms of behavior, its assumption that these categories are easily identifiable by a therapist, and its assumption that these categories form an essential part of a patient's identity, (72) seem to have spawned a regime with potentially far more wide-ranging effects. (73)

While instances in which non-SOCE therapists are constrained by SB 1172 (such as the hypothetical scenario described above) are likely to be rare, SB 1172's problematic collateral effects might extend beyond specific patient-therapist relationships into the broader contemporary discourse on sexual orientation. As several scholars have argued, systems of classification and categorization, especially those imposed using the coercive power of the regulatory state, have profound power to "shap[e] reality"; namely, to define what characteristics become normatively or politically salient in dividing people from one another. (74) Indeed, such arguments have animated some critiques of recognizing LGB people as a protected class for equal protection purposes, especially in light of the tendency of courts to reinforce the importance of certain supposedly "immutable" traits when identifying a group as a protected class. (75) As much as identifying LGB people as a suspect class based on the "immutability" of homosexuality might signal the state's role in protecting LGB people, it might also reinforce the notion that sexual orientation is a fundamental, identity-defining characteristic, thereby marginalizing the experiences of those who do not conceive of their sexuality along these lines. (76)

Similarly, SB 1172, by assuming a conception of sexual orientation that focuses on rigid categories (77) and takes for granted that sexual preference invariably forms an essential aspect of a person's identity, (78) normalizes this understanding within the contemporary discourse on sexuality. In practice, this could reinforce broader attempts to delegitimize the experiences of some lesbian-defined women and many bisexuals or queer-identified people whose experiences differ from mainstream expectations regarding sexuality, as explained above. (79) It also might impede greater acceptance of non-Western conceptions of sexuality in Western debates about sexual orientation. Scholars such as Sonia Katyal have explored the problems that a categorized, "identity-based" conception of sexual orientation can pose for non-Western communities. The notion that sexual orientation constitutes an essential aspect of a person's identity can "often collide with ... preexisting social meanings of same-sex sexual activity," (80) posing particular problems for immigrant communities. (81) In this respect, legislation crafted around an identity-based framework, like SB 1172, may also marginalize the experiences of members of non-Western cultures who conceive of same-sex sexual activity in ways different from, or incompatible with, an identity-oriented conception.

These criticisms are not meant to deny the very real concerns, discussed above, that SB 1172 seeks to address: that certain forms of SOCE lead to concrete psychological damage and that any form of SOCE is inherently harmful because it lends medical authority to attempts to stigmatize and further self-hatred among LGB people. However, as Part III argues, there may be alternative strategies for preventing these harms that would not require the state to espouse a settled definition of sexual orientation and directly regulate the practices of therapists in service of this definition.

B. SB 1172 Is Particularly Vulnerable to First Amendment Challenges

As recent litigation in California demonstrates, (82) SB 1172 also treads on a particularly controversial and ill-defined area of First Amendment law: the regulation of professional-client speech. After its passage, SB 1172 was immediately challenged by practitioners and patients seeking a preliminary injunction preventing California from implementing the new law. The challengers argued that SB 1172 violates the First Amendment by prohibiting therapists from engaging in protected speech. Two federal district courts considered separate motions for a preliminary injunction and came to opposite conclusions. In Welch v. Brown, Judge William Shubb enjoined implementation of SB 1172, holding that the statute regulates protected speech and lacks content and viewpoint neutrality. (83) In Pickup v. Brown, however, Judge Kimberly Mueller rejected the plaintiffs' motion, holding that because "SOCE therapy is subject to the state's legitimate control over the professions, SB 1172's restrictions on therapy do not implicate fundamental [First Amendment] rights." (84) The Ninth Circuit granted a preliminary injunction pending appeal (85) and, after consolidating the two cases, ultimately upheld SB 1172's constitutionality. (86) The court also denied the plaintiffs' petition for rehearing en banc (87) but recently stayed its mandate for at least ninety days to allow the plaintiffs to file a petition for writ of certiorari.

The primary question posed by the Pickup case was whether banning SOCE therapy for minors involves regulation of psychotherapists' professional conduct, (88) or whether SB 1172 in fact prohibits protected speech. (89) The Ninth

Circuit ultimately decided that:
   Senate Bill 1172 regulates conduct. It bans a form of treatment for
   minors.... Pursuant to its police power, California has authority
   to regulate licensed mental health providers' administration of
   therapies that the legislature has deemed harmful [and] ... the
   fact that speech may be used to carry out those therapies does not
   turn the regulation of conduct into a regulation of speech. (90)


The Ninth Circuit thus determined that SB 1172, as a regulation of professional conduct that only regulates speech "incidentally," is outside the scope of the First Amendment protection and simply needed to withstand the rational basis test. (91) The panel held that the statute could easily meet this burden. (92) In so doing, the court rejected Judge Shubb's argument that SB 1172 regulates speech (and was not content- or viewpoint-neutral) and therefore must withstand strict scrutiny. (93)

But as the differing district court rulings (and the Ninth Circuit's earlier decision to enter an emergency injunction pending appeal) demonstrate, the Ninth Circuit's ultimate decision affirming SB 1172's constitutionality was by no means inevitable. Indeed, the scope of so-called "professional speech" is particularly ill-defined in First Amendment doctrine. (94) Robert Post has succinctly identified the scope of the debate around professional speech, pointing out that a doctor's speech is clearly regulable as professional conduct, without offending the First Amendment, when the state seeks only to ensure that a doctor's conduct remains consistent with the standards of her profession. (95) As an obvious example, a doctor has no First Amendment right to deliberately withhold a diagnosis; such a failure to speak can be censured as malpractice without implicating the First Amendment. (96) At the other extreme, regulation of speech by a doctor that is not related to the professional conduct of her field would arguably receive some First Amendment protection, even if the speech is uttered in a professional context. (97) But the line between speech that is incidental to professional conduct and protected speech is not easy to parse, considering the underdeveloped case law in this area. (98)

The Ninth Circuit's decision grappled with this issue, but its conclusions remain open to question. The panel acknowledged that a doctor has a First Amendment right to express his opinions in public, but it explained that this protection diminishes when it comes to speech uttered in the confines of a "professional-client relationship" and ultimately ceases when it comes to speech that is uttered in a context exclusively regulated by accepted standards of professional conduct; at that point, the speech is simply speech incidental to professional conduct (for example, making or withholding a diagnosis). (99) The panel concluded that a ban on all forms of SOCE falls squarely in this latter category. But the court reached this result only by deferring to the California legislature's finding that SOCE is per se "harmful" and thus outside the "accepted standard" of the psychological profession. (100)

As Part I explained, however, the California legislature's findings that all forms of SOCE are per se harmful may have relied on the mingling of both clinical evidence and more ideological assumptions about the nature of sexual orientation. (101) If SB 1172 were tailored exclusively to prevent practices that lead to clinically demonstrable psychological damage, in clear violation of the therapist's basic professional standard of "avoiding] harm," (102) it would be an obvious example of the regulation of professional conduct, outside the scope of the First Amendment. But as explained above, SB 1172 also operates under a more subjective conception of harm, which understands all SOCE as stigmatizing and thus per se harmful to the fostering of a patient's positive LGB identity. (103) Had the Ninth Circuit questioned the legislature's evidence, it might have concluded that a full SOCE ban could not be justified as a pure regulation of professional conduct, at least until further evidence emerged that all forms of SOCE are in fact harmful and thus clearly outside the norms of the psychological profession. Indeed, the Ninth Circuit even acknowledged that there is some question as to whether all SOCE is per se harmful, but ultimately concluded that the legislature's assumptions were "plausible" and thus warranted deference. (104)

A more probing inquiry might have concluded that while banning some forms of SOCE--such as aversion therapy--rests squarely within the state's power to regulate professional conduct, SB 1172 may also, in effect, ban a certain type of stigmatizing speech (105) that falls outside the scope of pure professional conduct. Indeed, it is possible that a ban on all forms of SOCE as per se harmful improperly attempts to cut off First Amendment scrutiny by claiming that SOCE is categorically professional conduct, and thus outside the scope of the First Amendment, despite a lack of clear evidence that it should be considered as such. (106)

It is important to highlight that this Section has only argued that a SOCE ban should not necessarily be categorically considered a regulation of "professional conduct" outside the scope of the First Amendment. But even if a court recognized that a SOCE ban implicates some First Amendment protection, it might not necessarily find such a ban unconstitutional. While full explication of the First Amendment status of SOCE is outside the scope of this Note, the low public value of speech used in SOCE practices--especially considering the growing consensus that SOCE is ineffective (107)--might very well lead a court to find that a SOCE ban can survive a First Amendment challenge. (108)

While this analysis is now generally inapplicable in California, it is clear that the SB 1172 approach treads on a particularly contested and hazy area of the First Amendment. (109) Similar lawsuits are therefore likely to emerge in other states that pass legislation modeled after SB 1172--indeed, the recent New Jersey ban has already been challenged on First Amendment grounds (110)--at least until the courts more carefully define the nature of professional speech in First Amendment doctrine (111) or greater evidence emerges that SOCE is per se harmful under the professional standards of mental health professionals (and thus regulable as pure professional conduct). Courts that are less deferential to legislative findings that SOCE is per se harmful may be unwilling to treat such bans as pure regulations of professional conduct, thus opening the door to greater First Amendment scrutiny and the potential for the bans to be struck down on First Amendment grounds. (112) From a purely strategic perspective, then, it would seem advisable for SOCE opponents to work around this problem using alternative regulatory strategies that are less likely to generate contentious litigation, as Part III explores.
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Title Annotation:Introduction through II. Problems with the SB 1172 Approach B. SB 1172 Is Particularly Vulnerable to First Amendment Challenges, p. 1532-1559
Author:Victor, Jacob M.
Publication:Yale Law Journal
Article Type:Author abstract
Date:Mar 1, 2014
Words:6558
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