Metropolitan News-Enterprise


Thursday, January 30, 2014


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Court Denies En Banc Rehearing of Reparative Therapy Ruling

Dissenters Says Curbing Efforts to Change Sexual Orientation Imperils Free Speech


By MICHAEL J. PEIL, Staff Writer


The Ninth U.S. Circuit Court of Appeals yesterday denied en banc rehearing of a ruling that upheld the ban on state-licensed mental health providers engaging in sexual orientation change efforts.

The denial came over the dissent of three judges. Judge Diarmuid O’Scannlain authored the dissenting opinion, and was joined by Judges Carlos Bea and Sandra S. Ikuta.

The panel, which replaced an earlier opinion filed on Aug. 29, 2013, reversed the injunctive relief granted plaintiffs in Welch v. Brown, 13-15023, and affirmed the denial of relief in Pickup v. Brown, 12-17681. Both cases involved a plaintiff group, including licensed therapists and parents, who wished to use the psychological treatment proscribed by California Senate Bill 1172.

Professional Discipline

SB 1172 provides that mental health providers who wish to engage in sexual orientation change efforts must wait until a minor turns 18 years of age or be subject to professional discipline. Sexual Orientations Change Efforts, also known as SOCE, are defined as any practices “that seek to change an individual’s sexual orientation…to eliminate or reduce sexual or romantic attractions or feelings toward individuals of the same sex.”

Yesterday’s denial of rehearing remands both Welch and Pickup for proceedings consistent with the opinion that Bill 1172 passes constitutional muster.

The panel’s majority, in an opinion by Judge Susan P. Graber, held that California’s regulation primarily regulated conduct by banning the use of a specific treatment.

Graber said that medical treatment, whether for physical or mental illness, “implicates free speech interest only incidentally, if at all.” 

O’Scannlain, in his dissent yesterday, disagreed.

He wrote:

“By labeling such speech as ‘conduct,’ the panel’s opinion has entirely exempted such regulation from the First Amendment. In so doing, the panel contravenes recent Supreme Court precedent, ignores established free speech doctrine, misreads our cases, and thus insulates from First Amendment scrutiny California’s prohibition—in the guise of a professional regulation—of politically unpopular expression.”

Unlicensed Practitioners

The majority and the dissenters both recognized that 1172 does not prevent mental health practitioners from discussing SOCE with patients and still allows them to refer a patient to unlicensed practitioners for the treatment.

O’Scannlain disagreed with the majority, however, because, he explained, SOCE treatment is a form of talk therapy, involving speech alone, so to regulate it as conduct is error. 

He said:

“According to the panel the words proscribed by SB 1172 consist entirely of medical ‘treatment,’ which although effected by verbal communication nevertheless constitutes ‘professional conduct’ entirely unprotected by the First Amendment…such ‘conduct’ effected through speech would receive no constitutional safeguards against state suppression.”

Citing Holder v. Humanitarian Law Project (2010) 130 S. Ct. 2705, O’Scannlain said that the Supreme Court has held that speech cannot be transformed into conduct arbitrarily. Holder, he explained, applied First Amendment scrutiny and upheld a statute which forbade the “material support” of terrorist organizations, but only after rejecting the government’s argument that the statute punished conduct.

O’Scannlain said:

“[The] implication in Humanitarian Law Project is clear: legislatures cannot nullify the First Amendment’s protections for speech by playing this labeling game. SB 1172 prohibits certain ‘practices,’ just as the statute in Humanitarian Law Project prohibited ‘material support’; but with regard to those plaintiffs as well as the plaintiffs here, those laws targeted speech.”

O’Scannlain explained that the panel’s ruling creates a new category of speech for professional communications with clients where the First Amendment will not apply.

Varying Protection

Graber explained that the scrutiny applied to the speech of medical professionals varies, depending on the whether the speech is made while the relationship with a client is occurring. The lowest protection, she said, is applied when state’s power is greatest, as it is when regulating professional conduct.

SB 1172, she concluded, is only subject to rational basis review, which it passes since it serves the state’s interest of protecting the psychological well-being of minors.

O’Scannlain said:

“Empowered by this ruling of our court, government will have a new and powerful tool to silence expression based on a political or moral judgment about the content and purpose of the communications.”

The case is Pickup v. Brown, 12-17681.


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