Table of Contents Introduction I. The Nexus of Consumer Protection and SOCE A. The Basics of Consumer Protection Laws 1. Common Law Origins 2. Federal Consumer Protection Law and Subsequent State Adoption B. Understanding the History of SOCE 1. Some Early Challenges to SOCE 2. The Tide Turns Against SOCE C. Reasons to Combat SOCE with State Consumer Protection Law II. Classifying SOCE Representations as Deceptive Trade Practices A. Homosexuality as a Disorder B. Ability to Alter Sexual Orientation III. Accounting for Differences in State Consumer Protection Laws A. Differing Scopes of State Consumer Protection Laws B. The Element of Intent and Genuine Belief C. The Element of Reliance D. A Note on State-Brought Consumer Protection Claims IV. Responding to Potential First Amendment Defenses A. The Likely Inapplicability of Freedom of Speech Defenses B. Freedom of Religion: A Consumer-Plaintiff's Greatest Challenge 1. Religious Beliefs of SOCE Practitioners 2. The Immunity of Religious Institutions Conclusion INTRODUCTION
In a 1962 speech addressing the protection of consumer interests, President John F. Kennedy stated, "All of us are consumers. All of us deserve the right to be protected against fraudulent or misleading advertisements and labels." (1) With his administration's consumer rights legislation promoting fair packaging and labeling, changes to testing for prescription drugs, regulations for new food additives and food supplements, and required performance testing of household appliances, President Kennedy has been credited with being on the forefront of consumer advocacy in the 1960s. (2) However, since the 1960s, consumer advocacy has drastically changed. Nowadays, even the Kennedy Administration would likely be surprised at the ability of modern consumer protection laws to target a new industry altogether: therapies that claim to be able to alter a person's sexual orientation.
While such therapies were evidently not a cornerstone of early consumer law legislation, plaintiffs have recently begun exploring the ability to challenge groups that provide sexual orientation change efforts (SOCE) through consumer protection laws. (3) Under consumer protection laws, plaintiffs may generally allege that advertisements and promises of a change in sexual orientation from SOCE practitioners constitute deceptive business transactions or trade practices. (4) In fact, plaintiffs have had success with this line of legal action. In New Jersey, a jury found for the plaintiffs in Ferguson v. JONAH and determined that, under state consumer protection law, SOCE practitioners were liable for damages incurred by patients that underwent the practitioner-provided SOCE. (5) The defendant, Jews Offering New Alternatives for Healing (JONAH), was a conversion therapy group, and the plaintiffs were former JONAH clients who asserted that JONAH failed to fulfill its promises to change their sexual orientations. (6)
At the heart of Ferguson v. JONAH was a consumer-business transaction. JONAH offered conversion therapy sessions and counseling services with the claim that participation in such activities would alter participants' sexual orientations and rid them of same-sex attraction. (7) The cost of JONAH's services varied, with group sessions costing $60 and individual sessions costing $100. (8) The paid-for therapy and counseling sessions consisted of a variety of different SOCE. (9) Group sessions were often elaborate activities with aspects that involved the plaintiffs standing naked in a circle with other young men, reenacting scenes of past sexual abuse, and being taunted with homophobic slurs. (10) Individual sessions were counseling-based and involved counselors advising the plaintiffs to complete a variety of activities to combat same-sex attraction. (11) The suggested activities included spending more time at the gym, visiting bathhouses with their fathers, and wearing a rubber band on the wrist and snapping it when feeling attracted to another man. (12) One individual session involved a therapist instructing one of the plaintiffs to beat an effigy that represented his mother while screaming, as if killing her. (13)
The jury in Ferguson v. JONAH determined that the consumer-business transactions involving the aforementioned SOCE violated New Jersey consumer protection law. (14) The case was the first of its kind in the United States, (15) and the aftermath of the case resulted in JONAH ceasing SOCE services for good. (16) Although anti-SOCE activists seemed invigorated by the decision, (17) the success of the plaintiffs in Ferguson u. JONAH raises further questions, with perhaps the most succinct question being: Is Ferguson v. JONAH a one-time case or a sign of things to come?
Some academic legal literature has discussed the intersection of consumer protection law and SOCE. While Ferguson v. JONAH was developing, one legal scholar advocated for plaintiffs to target SOCE through antideception statutes, including consumer protection laws. (18) In the wake of the Ferguson v. JONAH jury verdict, another legal scholar has argued that the case represents the beginning of the end for SOCE practitioners. (19) Yet another has argued that consumer protection litigation against SOCE may improve the quality and acceptability of care for lesbian, gay, and bisexual health rights. (20) However, this Note is distinguishable from other work on the intersection of consumer protection and SOCE because it accounts for the high likelihood of SOCE practitioners adapting the representation of their practices to limit liability under consumer
protection laws. (21) While this Note argues that consumer protection laws are generally capable of holding practitioners liable for the harm caused by their SOCE practices, (22) major weaknesses exist within state consumer protection laws that frustrate the ability to ensure that SOCE practitioners are liable for deceptive trade practices. (23) Therefore, this Note focuses on the concept of deceptiveness, and predicts that SOCE practitioners will learn from Ferguson v. JONAH and attempt to avoid their services being labeled as "deceptive" under state consumer protection laws. (24)
This Note proceeds in four parts. Part I provides background on consumer protection law, details a brief history of SOCE, and explains why consumer protection laws provide an attractive opportunity to discredit SOCE. Part II explains the two core representations determined to be deceptive and in violation of consumer protection law in Ferguson v. JONAH. Part II then explains how SOCE practitioners will likely adapt the representation of their services to prevent them from being labeled as deceptive trade practices. Part III accounts for varying state consumer protection claim elements, and details how certain jurisdictions have requirements that would complicate SOCE claims. Part IV considers what defenses are likely to be raised by defendants, particularly involving First Amendment protections. This Note concludes by arguing that while Ferguson v. JONAH may be replicated nationwide, consumer protection laws will not be able to completely eradicate SOCE because SOCE practitioners still have viable ways to continue providing SOCE.
THE NEXUS OF CONSUMER PROTECTION AND SOCE
Before delving into the particularized legal aspects of consumer protection claims against SOCE, it is important to understand the basics of consumer protection law, the history of SOCE, and the motivations for eradicating SOCE practices. In this Part, Section A lays out the basic history and purpose of consumer protection law. Section B describes SOCE, including information about the practice's harmful impacts as well as details regarding the recent legislative movement to eliminate SOCE. Importantly, Section C explains why taking action through consumer protection laws serves as an attractive alternative to other efforts against SOCE.
The Basics of Consumer Protection Laws
As the name suggests, consumer protection laws serve to protect consumers from harmful business practices they may encounter when engaging in the open market. (25) A typical consumer protection law may prohibit businesses from partaking in unfair or unconscionable practices, but all consumer protection laws prohibit "deceptive" practices. (26) Consumer protection laws have been described as "a complex combination of state and federal statutes, [with] private and public enforcement," (27) and the antideception aspects of consumer protection law certainly match such a description. (28)
Common Law Origins
Predating consumer protection laws, the common law action for fraud or misrepresentation embodies the early legal framework prohibiting deception. Common law fraud or misrepresentation can be summarized as having five distinct elements. (29) A plaintiff in a common law fraud or misrepresentation case must prove that the defendant: "(1) made a false representation of a material fact; (2) knew or believed that the representation was false, or had an insufficient basis of information for making the representation (scienter); and (3) intended to induce the plaintiff to act in reliance on the representation." (30) Additionally, the plaintiff must prove that he or she: (4) "actually relied on the representation in a manner justifiable under the circumstances" and (5) "suffered damage as a result of such reliance." (31)
Originally, U.S. law was not amenable to accusations of fraud or misrepresentation in the business sphere. (32) Early law maintained implicit distinctions between ethics in business and ethics in other spheres of life, allowing greater leeway for businessmen to make commercial misrepresentations without suffering significant legal consequences. (33) As business transactions and tort law became more complex, early twentieth-century judges expanded the broadened theories of negligence into business transactions through the doctrine of misrepresentation. (34)
While common law fraud still remains...