The freedom to be "converted"? An analysis of the First Amendment implications of laws banning sexual orientation change efforts.

• Author: McCormick, Megan E.

1. INTRODUCTION

   Despite widespread criticism and a lack of scientific legitimacy, therapists throughout the United States continue to use Sexual Orientation Change Efforts (SOCE) on patients seeking to change their sexual orientation. (2) SOCE, also known as conversion or reparative therapy, includes a number of methods employed by practitioners to change an individual's sexual orientation from homosexual to heterosexual. (3) In October 2012, California Governor Jerry Brown signed a law outlawing the practice of gay conversion therapy on patients under the age of eighteen. (4) One year later, New Jersey Governor Chris Christie followed suit by signing a similar law barring gay conversion therapy practices in New Jersey. (5) Since the passage of these statutes in California and New Jersey, Massachusetts and New York have introduced similar bills. (6)

   While the purpose of the California bill is to safeguard the health and well-being of minors by protecting them from the purported harmful effects of SOCE, the statute's constitutionality has been the subject of judicial action since the bill's passage. (7) Conservative advocacy group Pacific Justice Institute (PJI), on behalf of plaintiff therapists, sought to enjoin the State from enforcing the California law, which it believed to be unconstitutional on a number of grounds, particularly as violative of the therapists' First Amendment rights. (8) The U.S. District Court for the Eastern District of California granted the plaintiffs' motion for a preliminary injunction, finding the law is content--and viewpoint-based and thus unlikely to withstand strict scrutiny. (9) On review, however, the Ninth Circuit reversed, holding the statute survives plaintiffs' constitutional challenges. (10) In January 2014, the Ninth Circuit denied plaintiffs' request for a rehearing en banc and again upheld the statute in an amended opinion. (11) As a result, PJI announced its intent to appeal to the United States Supreme Court. (12)

   New Jersey has also seen judicial action regarding SOCE, but from individuals opposing conversion therapy practices and seeking reparations for services performed on them by therapists employing SOCE methods. (13) In Ferguson v. JONAH, the plaintiffs brought suit against a program called Jews Offering New Alternatives for Healing (JONAH), where the plaintiffs received conversion therapy treatment. (14) The plaintiffs allege that the defendants violated New Jersey's Consumer Fraud Act by falsely promising to cure sexual orientation, a practice they claim has no scientific legitimacy. (15) Oral arguments in Ferguson v. JONAH began in July 2013; and the litigation continues on the heels of the passage of New Jersey's statute banning the very practice for which the plaintiffs complain. (16)

   This Note will focus on the constitutional impact of state statutes banning SOCE practices on minors, specifically looking at the effect on free speech. (17) It will first address the history of SOCE; the therapy's purported benefits and harmful effects; and the events leading to the passage of legislation in California and New Jersey. (18) Specifically, this Note focuses on pending and decided cases in those states and will assess those decisions while making predictions about how future courts may rule. (19) This Note also assesses the future of SOCE in California and New Jersey, as well as what this might mean for other states seeking to pass laws banning the practice, and the ban's greater implications regarding the right to free speech. (20) Finally, this Note will predict the likely application of strict scrutiny to statutes prohibiting SOCE, and advocate for the use of commercial speech analysis in order to uphold laws banning such harmful practices.

2. HISTORY

   1. Origins of Sexual Orientation Change Efforts

      Practitioners working in a variety of professional capacities use SOCE on patients who seek to change their sexual orientation from homosexual to heterosexual. (21) The precise methods employed by practitioners depend upon their expertise, field of study, and often their beliefs; but these methods can include both aversive and nonaversive treatments. (22)

      SOCE emerged from the development of the science of sexuality in the mid-nineteenth century, which believed homosexual attractions were caused by illness or abnormality. (23) Psychoanalysis during the nineteenth and twentieth centuries, especially in the United States, stigmatized homosexuality as a negative human characteristic caused by immaturity, pathology, family dynamics, or other outside influences. (24) As a result, the first attempts at changing a patient's sexuality in psychoanalysis focused upon altering family dynamics, reversing the effects of pathology, and facilitating maturity. (25) Negative views of homosexuality played a significant role in homosexuality's inclusion in the American Psychiatric Association's (APA) Diagnostic and Statistical Manual of Mental Disorders (APA DSM) in 1952 and 1968. (26) While SOCE techniques employed by behavioral therapy psychiatrists and psychologists varied, the goal of changing the patient's sexual orientation was the same. (27) It was during this period of stigmatizing homosexuality that contrary studies suggesting homosexuality was normative and homosexual behavior was part of a continuum of sexual orientations began to emerge. (28)

      1. Reported Effects of SOCE

         APA studies surrounding the effects of SOCE report varying responses to the therapies, ranging from perceived benefits to highly detrimental effects. (29) The APA Task Force on Appropriate Therapeutic Responses to Sexual Orientation (APA Task Force), in its intensive study conducted in 2009, reported that those who failed to change their sexual orientation often found the experience a significant cause of emotional and spiritual distress; conversely, others found SOCE helpful, reporting it helped them reduce stress and live in a manner consistent with their faith. (30)

         The APA Task Force found that studies largely indicated attempts to change patient's sexual orientation may cause distress and poor mental health, including depression and suicidal thoughts. (31) The APA Task Force also reported that early and modern research provides no clear indication of the harm experienced by patients undergoing SOCE, and thus, it is difficult to conclude how likely it is that SOCE is harmful. (32) They further asserted this lack of research presents serious concern for the validity of SOCE and practitioners' ability to help patients successfully and irreversibly change their sexual orientation. (33) While early studies showed lasting change to a patient's sexual orientation was uncommon, a minority of patients demonstrated reduced same-sex attraction and reduced arousal to all sexual stimuli, especially stimuli relating to same-sex attraction. (34) "Compelling evidence of decreased same-sex sexual behavior and increased ... engagement in sexual behavior with the other sex was rare." (35)

         Despite early studies, research surrounding modern SOCE shows no conclusive evidence about the effectiveness of nonaversive treatments. (36) The APA Task Force similarly found no empirical evidence that participating in SOCE during childhood alters sexual orientation during adulthood. (37) Additionally, the APA Task Force found that SOCE using negative representations of homosexuality provides no documented benefits and can lead to harmful effects as a result of sexual stigma. (38) The APA Task Force also found SOCE provides patients with inaccurate information about homosexuality while promising unsubstantiated benefits and relying on methods with no scientific basis. (39)

         The APA Task Force also reported the benefits of SOCE experienced by certain participants. (40) Some SOCE patients reported decreased interest in, sexual attraction to, and sexual behavior with same-sex partners, as well as increased interest in, sexual attraction to, and sexual behavior with other-sex sexual partners. (41) Some participants also reported an increase in healthy relationships and marriages with their other-sex partners, leading to an improved quality of life and mental health overall. (42) In many instances, however, patients enjoying these benefits had agreed to participate in SOCE as a result of a deep desire to change their sexual orientation. (43)

         Despite reported benefits, the APA Task Force found no sound scientific basis for determining SOCE's actual impact on decreasing same-sex attraction and increasing other-sex attraction in participants. (44) Finally, the APA Task Force reported that a lack of sound data regarding the mental health effects of SOCE means there is no basis for claims that SOCE improves or harms a patient's mental health and quality of life. (45)

         Notwithstanding inconclusive findings regarding the benefits and damages of SOCE, the APA Task Force reports that conversion therapy is found to pose a significant risk to patients. (46) The APA Task Force reports that SOCE participants have experienced feelings of increased self-hatred, confusion, depression, suicidal thoughts, and other serious mental health effects. (47) While there is a lack of sound scientific data regarding the effects of SOCE, that lack of data is precisely what leads the APA Task Force to conclude SOCE is not beneficial to patients. (48) It reports an overall consensus in the psychological community that SOCE does not work, especially because it is not grounded in the science of psychology. (49)

      2. Homosexuality Removed from APA DSM

         In 1962, as a result of growing research, activists began pressuring the APA to remove homosexuality from the APA DSM's mental illness listing. (50) As a result, the APA undertook an evaluation process, culminating in a vote to remove homosexuality from the 1973 edition of the DSM. (51) In support of this decision, the APA issued an accompanying statement "supporting civil rights protection for gay people in...