The right to stay gay: SB 1172 and SOCE.

• Author: Friedman, David
• Position: California's Sexual Orientation Change Efforts Act of 2012

INTRODUCTION I. SOCE II. SB 1172 and SOCE in California III. Legal Challenges to SB 1172 IV. Implications of SB 1172 Introduction

Gay rights in the United States have experienced something of a renaissance over the past two decades. Less than thirty years ago, the Supreme Court held that it was constitutional to criminalize homosexuality and scoffed at the idea that there was any "connection between, family, marriage, or procreation on the one hand and homosexual activity on the other." (1) Today, in the wake of United States v. Windsor, (2) it seems increasingly inevitable that homosexual individuals will soon be allowed to marry in every state of the Union and enjoy the full panoply of rights enjoyed by heterosexuals.

Nevertheless, not all are on board with this project of equal rights for homosexuals. Several states have been in the news in recent months for their innovative legislative attempts to limit gay rights. In particular, Kansas and Arizona have been under immense national scrutiny for their failed efforts to pass bills that would have allowed business owners to deny service to homosexuals on religious grounds. Other states have proposed more targeted measures covering, for instance, businesses that provide services for wedding ceremonies. (4) All of this has prompted many commentators to lament that "[w]e still have a long way to go for gay rights." (5) Yet, in all of this angst over a potential "antigay backlash" (6) leading to innovative state legislation to limit gay rights, several innovative measures seeking to expand gay rights have flown under the radar.

California Senate Bill (SB) 1172 is one of the more notable examples of this phenomenon. Signed by Governor Jerry Brown in September 2012, SB 1172 prohibits mental health providers and therapists from engaging in sexual orientation change efforts (SOCE) with minors under eighteen years of age. (7) This Note will discuss both SB 1172 and the resulting litigation that has bounced around federal courts since its passage. Part I will provide some background on SOCE and the controversy surrounding their use. Part II will unpack the particulars of SB 1172 and its legislative history. Part III will discuss the litigation over the constitutionality of SB 1172. And Part IV will explore some of the potential implications of SB 1172.

1. SOCE

   The term SOCE, colloquially known as "gay conversion therapy," (8) is an umbrella term that comprises a number of techniques and practices that aim to "help" clients with "unwanted same-sex attraction." (9) Many of these techniques and practices were conceived in tandem with the "pathologizing psychiatric and psychological conception of homosexuality during the 1960s and the early 1970s." (10) Generally, SOCE are divided into two categories: "aversion treatments" and "nonaversive treatments." (11) The former category includes treatments such as "inducing nausea, vomiting, or paralysis; providing electric shocks; or having the individual snap an clastic band around the wrist when the individual becomes aroused to same-sex erotic images or thoughts." (12) The latter category resonates more with our contemporary conception of therapy. It includes treatments such as cognitive therapy to "change gay men's and lesbians' thought patterns by reframing desires, redirecting thoughts, or using hypnosis."

   As the psychiatric and psychological community, and society at large, have increasingly accepted homosexuality, SOCE have become less mainstream and today are rejected by most mental health professional associations. Most in the medical community deem aversive therapies, in particular, to be "inappropriate, unethical, and inhumane." (14) SOCE, however, have retained limited popularity among one segment of the population: "those holding conservative religious and political beliefs." (15) Some in this community believe that can be used to "repair" or "convert" homosexuals and absolve them of the sin of their same-sex attractions. (16)

   The efficacy of SOCE has been the subject of continued debate. A controversial 2003 study by Robert Spitzer collected 200 examples of gay men and women who had experienced some change in their sexual orientation as a result of SOCE. (17) Other so-called "ex-gays" have also gone public with their stories and formed online support communities. Many major mental health professional organizations, however, have concluded that there is "little basis for concluding whether SOCE has any effect on sexual orientation," largely rejecting studies such as those performed by Spitzer as systematically flawed. (19) Many have also gone further, suggesting that SOCE have harmful side effects, including depression, anxiety, self-destructive behavior, substance abuse, suicidal thoughts, and increased hostility towards others. (20)

2. SB 1172 AND SOCE IN CALIFORNIA

   SB 1172 is refreshingly clear about both what motivated the legislation and what the law does and does not do. The bill only has two sections: Section 1 contains a long list of findings and Section 2 lays out the substantive provisions. The findings in Section 1 largely consist of statements drawn from mental health professional organizations." (21) Their statements echo the concerns delineated above about the efficacy of SOCE and the potential side effects. Several also discuss the "especially serious health risks" involved in using SOCE on minors, who are more vulnerable to the potential side effects of self-stigmatization, depression, and low self-esteem. (22)

   Section 2 adds three new sections to the California Business and Professions Code. The first new...