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

• Author: Victor, Jacob M.
• Position: II. Problems with the SB 1172 Approach C. SB 1172 Could Foment Political Backlash through Conclusion, with footnotes, p. 1559-1585

3. SB 1172 Could Foment Political Backlash

   Because SB 1172 operates as a direct ban on parents' ability to seek SOCE therapy for their children, it has already been criticized for undermining a parent's right to control his child's upbringing. Immediately after the legislation was passed, conservative activists began accusing the California legislature of privileging gay rights over "parental rights." (113) As one activist put it, "[t]his legislation is a grotesque violation of the rights of parents over their children." (114)

   The argument that SB 1172 infringes on "parental rights" probably has little merit from a purely constitutional perspective. Opponents of the bill argued, in their original motion for a preliminary injunction before Judge Mueller, that SB 1172 implicates the Supreme Court's decisions that read the Due Process Clause as protecting parents' rights to control their children's education, such as Pierce v. Society of Sisters (115) and similar cases. (116) But Judge Mueller in Pickup thoroughly rejected this argument, holding that SB 1172 is consistent with the limitations, identified by the Supreme Court in Prince v. Massachusetts (117) and subsequent cases, that the state may place on parental rights in the interest of a child's welfare. (118) Judge Shubb declined to address the parental rights argument altogether in Welch, enjoining implementation of SB 1172 exclusively on First Amendment grounds. (119) Perhaps recognizing the weakness of these arguments, opponents of SB 1172 only cursorily mentioned the parental rights challenge in briefs before the Ninth Circuit. (120) And the Ninth Circuit ultimately accepted Judge Mueller's holding, concluding that "SB 1172 does not infringe on the fundamental rights of parents." (121)

   But even if the argument that SB 1172 infringes on parental rights has little legal merit, it could still prove to be a powerful rhetorical device in mustering opposition to legislation on the model of SB 1172. In the modern era, opponents of LGB rights have often employed rhetoric that frames state "promotion" of homosexuality as infringing on the rights of heterosexuals. Rather than employing the once-prevalent attacks that LGB people are "sinful" or "biologically degenerate," opponents of LGB rights now frequently employ "social republican arguments," contending that a policy that affirms basic LGB rights invariably disrupts elements of the social order and especially family life. (122) This "no promo homo" discourse is based on the assumption that citizens should have the right to be free from the "promotion" of homosexuality in order to safeguard religious liberty, family values, or parental rights.

   No promo homo arguments have been most directly employed in the context of public schools and other state-controlled areas that implicate the lives of children, under the assumption that "wavering" children might become gay if exposed to a favorable or neutral conception of homosexuality. (123) Considering the strong public values that favor parents' control over their children's upbringing, (124) these arguments have proven quite powerful rhetorically and politically. (125) And this strategy is still alive and well: The recent "Yes on 8" campaign, which succeeded in convincing California voters to pass a referendum revolting same-sex couples' right to marry, invoked the parental-rights oriented, no promo homo narrative with great success. Yes on 8 activists used advertisements that painted the marriage equality movement as privileging same-sex marriage over a parent's right to control her children's moral and religious upbringing. (126) For example, the "Everything to Do With Schools" ad, which aired on California television networks, argued that if marriage equality were allowed to stand, public schools would be forced to teach a more inclusive definition of marriage and parents would not be able to opt their children out of such lessons. (127)

   As the opposition to the bill demonstrates, SB 1172 brazenly plays into the basic fears over the state usurping parental authority that underlie aspects of the no promo homo narrative. Removing parents' ability to seek SOCE therapies for their children not only reinforces anti-gay fears about "wavering" children being "converted" to homosexuality (however irrational those fears might be) but also, at least superficially, appears to "violate" a fundamental element of parental authority: the right to control a child's medical treatments. While it is impossible to know how ubiquitous the anti-parental-rights rhetoric surrounding SB 1172 will become, the bill at least carries a risk of encouraging a kind of popular political mobilization similar to what the Yes on 8 campaign provoked.

   It is important to note that fears about "backlash" to gains by minority groups can often be overstated. (128) Furthermore, any concern about backlash must be weighed against the broader goals of the social movement; even if there is a true risk of backlash, the risk may be worth taking. The goal of this Note is not to argue that concerns about backlash should take precedence over the importance of addressing the genuine harms posed by SOCE. Rather the Note's aim is to identify the risk of counter-mobilization and propose solutions-as the next Part does-that might partially mitigate it, while still allowing the state to regulate minors' exposure to SOCE.

   3. AN ALTERNATIVE: DECEPTIVENESS--BASED REGULATION

   In November 2012, a group of former patients of a SOCE-practitioner group called Jews Offering New Alternatives for Elealing (JONAH) (129) filed suit against the organization in the Superior Court of New Jersey. (130) The plaintiffs, represented by the Southern Poverty Law Center and several private firms, (131) allege that JONAH's promise to "cure" them of their homosexuality was fraudulent and deceptive in violation of New Jersey's Consumer Fraud Act. (132) The plaintiffs maintain that JONAH's practices rest on the "false premise that gay sexual orientation is a mental disorder" and thus treatable, and that JONAH fraudulently claims that its specific SOCE practices are supported by "[e]mpirical evidence" attesting to their efficacy and are "well-grounded in science." (133) These claims "induced" the plaintiffs to pay JONAH several thousand dollars for treatments, which had no effect on their sexual orientations. (134)

   The JONAH case, which seems to be the first of its kind, (135) has yet to be resolved. (136) But the plaintiffs certainly face an uphill battle; the New Jersey Consumer Fraud Act has an "intent" requirement, (137) which may be difficult to meet. Furthermore, the New Jersey Consumer Fraud Act is designed primarily to target fraudulent sales of "merchandise or real estate" (138) and a court might hesitate to apply it to therapists. But the case is still significant because it points to the fact that claims made by SOCE practitioners are quite similar to other lands of deceptive promises made by doctors and commercial entities. In this respect, SOCE could potentially be targeted using wide-ranging anti-deception regulation, rather than through legislation specifically designed to ban SOCE practices.

   This Part argues that anti-SOCE activists and lawmakers should focus on the deceptiveness of SOCE and target these therapies in the context of a more wide-ranging regime. All states regulate the behavior of licensed mental health professionals by requiring adherence to a code of professional conduct as a condition of maintaining a license to practice. (139) Through these codes of conduct, some states forbid therapists from engaging in deceptive practices; (140) indeed, California law already allows the state Board of Psychology to de-license therapists who use deceptive advertising or make deceptive or unrealistic promises to their existing patients. (141) Such anti-deception provisions in state laws that regulate mental health professionals could potentially be applied to SOCE practitioners. The scientific literature clearly supports the conclusion that all forms of SOCE are ineffective, which means that most self-defined SOCE practitioners engage in practices that might be actionable under anti-deception provisions like California's. Using a broader deceptiveness-oriented regime, rather than a targeted ban like SB 1172, would allow SOCE to be curtailed without necessarily triggering the essentialism, First Amendment, and backlash concerns discussed in Part II. In this respect, an anti-deception approach poses a promising alternative to the SB 1172 approach in general, but it might prove especially attractive in states that are unwilling to pass targeted SOCE bans like SB 1172.

   This Part proceeds in four Sections. Section III .A outlines the broad consensus among psychologists that SOCE is ineffective and explains that SOCE practitioners almost uniformly hold themselves out as being able to change a patient's sexual orientation despite this consensus. Section III.B considers the practicalities of developing a regime that would generally prohibit deceptive psychotherapeutic practices, including SOCE. Since existing provisions of the California Business and Professions Code already prohibit deceptive advertising by medical professionals, and also limit a therapist's ability to make unrealistic promises to his patients, this Part uses California as a case study for how an anti-deception regime may provide sufficient grounds for de-licensing SOCE-practicing therapists. Section III.C then explains why this broader deception-based approach could be an especially promising strategy in states unlikely to pass targeted SOCE bans, and might also be advisable even in states like California, since it is less likely to succumb to the criticisms of SB 1172 discussed in Part II. Finally, Section III.D addresses potential objections to this approach.

1. SOCE's Ineffectiveness and the Case for Deception

   The question of whether the promises made...