Ninth Circuit Rejects First Amendment Challenge To California Law Banning "Conversion Therapy"

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114 Responses

  1. jdgalt says:

    I wouldn't mind at all if the courts did create a right for adults, at least, to obtain any medical treatment they want, regardless of a legislature's or bureaucrat's view that it is "quackery" or that the provider is unqualified.

    But there is a better reason to ban conversion therapy on minors: like denying a minor an abortion (or equivalently, requiring parental notice), such "therapy" would have effects lasting far into adulthood, and that, in my view, gives the child a right to veto it.

  2. Doctor X says:

    The point is whether or not there is evidence of efficacy and whether or not there is evidence of harm. There is no evidence of efficacy–leave aside whether or not conversion is a desired effect–but there is evidence of harm.

    That is it.

    Doctors cannot trephane to release evil spirits. "But it is my BELIEF!" Doctors cannot refuse to treat a child with an infection and prescribe prayer instead. Doctors cannot claim that sex has a maturing influence on "troubled yutes" and start sleeping with adolescent patients. Doctors cannot prescribe beating about the head and shoulders with a ball-peen hammer for athlete's foot.

    Et cetera.

    This has been about "wanting" against reality. Proponents "want" homosexuality to be a "disease" that they can "cure." They have their right to that delusion, but it remains such until they can provide evidence of such. Thus far, they not only have not, they have ignored the contrary evidence. This makes their delusion willful.

    I wish beer would cure me of weight gain. It is my "belief." I have a right to that belief. I do not have the right to recommend it to children.

    CHILDREN! [Stop that!–Ed.] Sorry.

    –J.D.

  3. Zak N. says:

    I wouldn't mind at all if the courts did create a right for adults… to obtain any medical treatment they want, regardless of a legislature's or bureaucrat's view that it is "quackery" or that the provider is unqualified.

    The only way that your idea is different than the current status quo is that implementation of your idea requires that quacks and the unqualified be able to represent their wares as effective treatment. I can go to the local faith-healer now and ask them to pray some cancer away (and even pay them money), but they just aren't allowed to claim that they can actually do it (because they can't).

    By opening the market to quacks you create an environment with greater noise as to what does and does not actually work as a therapy. While the quacks might be liable under this structure, as they are under the current structure, you don't have the easy handle to prosecute people who lie about therapy efficacy to get patients. Right now we have a bright line, your system would make a fuzzy line.

    Basically you'd be making it easier for faux therapies like homeopathy, chiropractic, and acupuncture to propagate through the market. All of these faux therapies would love to be able to advertise clinical outcomes for which there is no evidence and the only thing that is slowing them down is that it is illegal. This will kill people.

  4. nl7 says:

    I think this law pretty much requires you to accept some or all the main beliefs of people who oppose conversion therapy in principle (I group I am part of). If you assume that conversion is seldom or never truly effective, or that non-standard sexuality is a perfectly acceptable choice, or that depression and suicide are far bigger risks to gay teens than eternal damnation, or that bigotry is a key part of conversion therapy, then it seems highly reasonable to ban its practice on minors.

    But if you assume a neutral viewpoint, where conversion might or might not be effective, might or might not have proper priorities, might or might not be motivated by hatred or love, then it's hard to see why parents could not exercise their judgment for their children. Parents make medical, religious, and ethical decisions for their children, and have the right to tell their children that their homosexuality is a sin that will ruin their lives and send them to hell. So making it legal to degrade your own non-straight children but illegal to seek a 'treatment' for their sexuality seems weird.

    Is it really so different from substance abuse programs targeted at minors? If we are viewpoint neutral, then what line do we draw that says calling patients worthless junkies or lying alcoholics is okay but calling patients sinful perverts is not? It's only different if we adopt the viewpoint that drugs are bad but sexuality is not. And once we grab that viewpoint, we're treading into very dangerous waters, with regard to free speech.

    I just don't see a way to differentiate conversion or anti-gay therapy from other therapeutic methods, without using our social and ideological biases. The government lawyers would disagree, pointing to something like "medical consensus," but I don't accept that argument since it also relies on ideological and social biases.

    What if the conversion therapy were provided for free by a church as a religious function? That'd be squarely within free exercise, in my opinion. Without the commercial angle (the courts are easily distracted from civil rights by the involvement of grubby money), then I don't see what differentiates it from general religious or social indoctrination.

    By far the weirdest and most dishonest part of the whole affair is that the entire public relations effort and political campaign was social and ideological. Huge numbers of people, myself included, are offended by anti-gay therapies and associate them with prejudiced, redneck conservatives, and with high suicide rates of gay teens. This was definitely prosecuted politically in a culture-war style. But the court had to essentially find that it was not really about a culture war or religious bigots, rather just a neutral rule about medical treatment. Completely dishonest.

  5. David says:

    "As the Ninth Circuit acknowledges, California licensed therapists can… refer minors to unlicensed persons like ministers who are free to inflict conversion therapy."

    That seems weird. Can you think of any other treatment that doctors are not allowed to do but can refer the patient to have an unlicensed person do?

  6. Stephen H says:

    An adult can see a quack and receive whatever quackery they wish to buy. It is their own health that they are messing with, and the fact that they believe some utter rubbish and make their decisions based upon that hurts nobody but themselves.

    A child, on the other hand, should be protected by law from the folly of adults trying to inflict unscientific and dangerous practices upon them. This decision is about protecting children from stupidity. It is not prohibiting adults from stupidity – any law that tried to do that would have a very tough time (and be extremely stupid).

    I am in favour of mandatory vaccination, with exceptions only for those who have medical conditions preventing safe vaccination. Vaccination works at the level of a community, and if you are going to live in that community then with your rights come responsibilities. While a tiny proportion of the community cannot safely receive vaccination, the rest has a responsibility to protect themselves and that proportion who cannot otherwise be protected to do the right thing.

  7. Zak N. says:

    But if you assume a neutral viewpoint, where conversion might or might not be effective

    That's not a neutral point of view. Effective is a predictive statement about physical reality. You don't get to have opinions about it in medicine. Either the therapy accomplishes it's stated goals or it doesn't. Conversion therapy doesn't and that provides the rational basis for outlawing it.

    It now falls into the same nebulous world of all other quack medicine. It's illegal for licensed medical professionals to practice and maintain their license, but perfectly legal for some bozo on the street to do it so long as she doesn't actually claim that it will work.

  8. nl7 says:

    Doctor X:

    Just wanted to point that, in my understanding, this bans even conversion therapy that relies only on talking. Comparing it to trepanation or statutory rape is really misleading. It is legal in California for parents to talk to their children about sexuality and religion in a way intended to make them heterosexual, but California has made it illegal for an intermediary counselor to engage in the same talking.

    Comparing a 'talking cure' style of conversion to physical cutting or to sexual intercourse is somewhat inflammatory.

    And as above, I don't see how you can differentiate it from other forms of therapy on minors. Critics allege that the long-term success rate of addiction programs like AA is something around 5%. But nobody's talking about banning these programs, and in fact the government often mandates their infliction upon criminal offenders.

    It's impossible to understand why conversion therapy would be targeted and prohibited, except that it's largely the province of conservative anti-gay bigots and California is full of people who don't sympathize with conservative anti-gay bigots.

    This was not a dispassionate focus on results. California allows acunpuncture, aromatherapy, and feng shui to be practiced for money, and even mandates the inclusion of acupuncture in insurance plans.

  9. nl7 says:

    Zak: the results are contested and will mostly depend on your pre-existing ideological bias. I'm biased against the whole treatment and I assume it only 'works' in the sense that its victims feel social pressure to superficially conform. But I'm sure plenty of people believe it is effective.

    Since sexuality cannot be tested like a pathology (or at least, you likely won't find huge numbers of people who will agree to have their genitals monitored for arousal to the same sex), the notion of efficacy will likely remain subjective in this area.

    And as I said before, nobody in California is submitting acupuncture or aromatherapy to similar scrutiny, or even teen substance abuse therapy. This ban only makes sense when you mention that the practice being banned is favored by super-conservative religious types. Meaning that people are being targeted for their social and religious views.

  10. LauraW says:

    nl7 wrote:
    I think this law pretty much requires you to accept some or all the main beliefs of people who oppose conversion therapy in principle

    It does nothing of the sort. The law regulates licensed mental health providers' conduct. They may not perform conversion therapy on minors. It does not regulate their beliefs at all. They can believe whatever crazy things they want, including that conversion therapy works (against all evidence to the contrary). They can publicly advocate for conversion therapy. They can refer parents to quacks who perform it. They just can't do it themselves.

    That seems weird. Can you think of any other treatment that doctors are not allowed to do but can refer the patient to have an unlicensed person do?

    That seems a bit odd to me too. I wonder why the state did not try to outlaw conversion therapy entirely, just like trepanation is outlawed. I suspect that it would be a lot harder to do so outside of an existing regulatory framework, especially considering how the 9th Circuit's opinion relied os heavily on that framework. But that's just speculation. Does anyone know the legislative history there?

    Totally off-topic, but:
    I am in favour of mandatory vaccination, with exceptions only for those who have medical conditions preventing safe vaccination. Vaccination works at the level of a community, and if you are going to live in that community then with your rights come responsibilities.

    Parents should be free to avoid vaccinating their children, as long as said children spend their entire lives in a plastic bubble. :-)

  11. LauraW says:

    And as I said before, nobody in California is submitting acupuncture or aromatherapy to similar scrutiny, or even teen substance abuse therapy.

    The first two are at least harmless, as is the feng shui* that someone mentioned elsewhere in the thread. There's even a bit of scientific evidence that acupuncture works (according to my doctor, anyway; I didn't read the journal articles myself), though I think that is not a settled question. As I understand it, the rationale for banning conversion therapy is not just that it does not work, but that it is actively harmful. Sometimes extremely so.

    *OK, feng shui is only mostly harmless. I currently have a crazy neighbor telling me that my new house has bad feng shui. It is apparently sending bad vibes in her direction. ;-/

  12. En Passant says:

    "Conversion therapy" hits a sweet spot which many other historical quackeries did not. The sweet spot is the intersection of three beliefs, religion, pseudoscience and pure bigotry.

    Mary Baker Eddy, L. R*n H*bb*rd, and others hit only the intersection of only two, religion and pseudoscience, yet fared quite well, finding followers and establishing institutions for their religions.

    I didn't expect the 9th to uphold the statute, but it is good that they overturned it with such thorough reasoning.

    The prospect of a religious or quasi-religious cult finding popular following and focusing on "treating" children with pseudoscientific "medical" practices is both frightening and not without precedent.

    Mel and Betty Sembler's "Straight, Inc.", now "Drug Free America Foundation, Inc." found great financial and organizational success, and even federal funding, from the mid-1970s on. Synanon is another, but now defunct. These organizations wreaked havoc in peoples' lives while declaring that they were saving people from themselves. They hit the intersection of religion and pseudoscience, combined with the ignorance approaching bigotry of drug prohibition politics.

    Children were their targets, though with Synanon less so. I think the error, if one can call it that, which led to the legal demise of "conversion therapy" were the claims by its followers that it was science based medicine. The successful cults always stopped slightly short of that, and focused their claims more upon faith and whatever success they might advertise with the patient equivalents of Potemkin villages.

  13. nl7 says:

    I think D.A.R.E. is a good illustration of my point. The evidence is highly controversial, but critics allege that D.A.R.E. is correlated to HIGHER drug use. If so, it would not only be ineffective, but counter-productive. Just run over to wikipedia for DARE and there's a California study reporting that the program is ineffective and virtually all teens were neutral to negative about instructors.

    Has California made it illegal to provide this anti-drug program that has little or no evidence of efficacy and may be worse than doing nothing? Of course not; it pays the salaries of police officers to present this social propaganda to students during what would otherwise be class time.

    I just don't buy the argument that anti-gay therapy is being banned for lack of effectiveness. It doesn't hold up to scrutiny. The ban's existence only makes sense in the context of a culture war.

    And again: I'm not in favor of this therapy itself, just its legality as a necessary extension of religious freedom.

  14. nl7 says:

    Laura: simply saying 'conduct' doesn't get you away from the first amendment or from freedom generally. Wearing a yarmulke or going to church is conduct.

    Talking is the second mildest form of belief, besides silently believing something. If trying to persuade people of your beliefs, or hiring others to assist you in that persuasion, becomes illegal, then you're clearly infringing on freedom despite only regulating outward conduct.

    I still don't accept the trepanation comparison. Are you trying to migrate towards a circumcision discussion? I've avoided bringing it up because those never end well. But you cannot compare talking and physical cutting like they're direct equivalents.

    With regard to harm, I think that's the only argument that's close to justifying a ban. If a practice noticeably increases the likelihood that teens will blow their brains out, then you can make a decent child endangerment argument. But I'd still say that's dangerous to the first amendment and highly susceptible to the preconceived notions of policymakers.

    If California is saying that conversion therapy is quackery and no licensed professionals can do it, then that rationale ought to apply to acupuncture despite it being harmless. Would it be harmless to make somebody pay $200 a week for a magical cure that's just sugar pills? Of course – you took money! The harm of acupuncture is that it takes your money. If you like the relaxation of it, like a massage, then fine. But it's scientific bullshit, so if California is just regulating quackery then they have a huge target there – yet they actually force insurers to provide this placebo.

    Once again, this is about going after conservative bigots. That's a sentiment I like, but I cannot accept it from the government.

  15. En Passant says:

    @nl7 on Aug 29, 2013 @8:56 pm:

    The difference between "conversion therapy" and D.A.R.E is that D.A.R.E. is not practiced by licensed professionals who claim it is a "therapy".[1]

    The "conversion therapy" proponents moved into the licensed practitioner arena. That is why the lack of scientific evidence became an issue.

    Anybody can claim to cure space cooties and charge money to do it, as long as they don't do it in a practice of a licensed profession.

    FN 1: Yes, I abhor them both. But they are not the same.

  16. GrimGhost says:

    @NL7 — No matter how many fundamentalists believe that conversion therapy "is right" and that "it works," it harms the child. That's the truth, and truth is not subject to Nielsen polling. So doctors shouldn't be allowed to do conversion therapy on teens, period.

    I point out that the same pseudo-arguments for allowing conversion therapy justify the "recreational" beating of gay teens. "God says it's okay to beat up them fa**ots."

  17. En Passant says:

    Moi on Aug 29, 2013 @8:53 pm:

    I didn't expect the 9th to uphold the statute, but it is good that they overturned it with such thorough reasoning.

    D'oh! typing too fast.

    I didn't expect the 9th to overturn the statute, but it is good that they upheld it with such thorough reasoning.

  18. Zak N. says:

    the results are contested and will mostly depend on your pre-existing ideological bias

    [Citation needed]

    Since sexuality cannot be tested like a pathology… the notion of efficacy will likely remain subjective in this area.

    It is absurd how small a box you are shoving science into. Sexuality is a directly observable phenomena. If you don't believe me, go to a gay bar (or any bar, but a gay bar is more salient).

    These programs claim to be able to stop people from exhibiting homosexual behaviors. That is an outcome. So a study that:

    1) Requests self reports about sexual identity
    2) Requests self reports about sexual history
    3) Measures marital status
    4) Monitors regional sexual expression (i.e. prevalence of said gay bars)

    directly accesses proxies for the rate of occurrence of various sexualities. If you compare the rate at which gay youth become gay adults when exposed and not exposed to these programs utilizing these proxies you can claim them to be effective or ineffective.

    This is in addition to utilizing suicide rates, rates of depression, etc. as proxies for negative outcomes. This has been done and measured and the results have caused the medical community to speak with one voice on the mater.

    The 'controversy' here is like the 'controversies' around global warming, vaccines, and evolution. On the one hand you have things like experts and evidence while on the other hand you have people making crap up. Being neutral here makes you wrong.

  19. nl7 says:

    Stephen:

    I wasn't going to wade into this, but I can't help but be curious – how do you decide what's too 'dangerous' for parents to expose their children to it? I don't know that I have an answer myself. But I do know it's a huge opening for officials to insert their own judgment on how others should live – in fact, that's exactly the point.

    It also necessarily assumes that any religious goals have zero or near-zero value. I don't have religion, so that doesn't directly affect me, but I do think it has important implications for religious freedom to simply assume that eternal damnation or salvation can be entirely dismissed. That's tantamount to saying that adults have a right to religious belief, but their children don't – isn't it?

    A religious parent assumes their most important goal in life is the proper religious instruction of their children. If a soul is immortal, then the ratio of afterlife to life is infinity, meaning your salvation is infinitely more important than your physical well being. If the government entirely ignores the potential for salvation or damnation, then isn't it necessarily making a religious determination?

    I'm not sure these questions are 100% fair to ask, but I think they deserve consideration, despite my own lack of belief. I suppose my pseudo-anarchism overrules my agnosticism, so I don't need to worry about the balancing act to be performed by a government whose existence I don't entirely endorse.

  20. Zak N. says:

    The evidence is highly controversial, but critics allege that D.A.R.E. is correlated to HIGHER drug use.

    Oh man, I forgot about D.A.R.E. I grew up through it and man THAT was a waste of time. They got some jerks altruistic souls on-stage to self righteously preach about not doing drugs to kids who were too young to know what drugs even are. It made me think: If this jerk doesn't like them they gotta be good!

    Also, those rulers with holographic pictures of lungs before and after smoking were terrible. Like, the edge was wavy.

  21. mud man says:

    We seem to be having a discussion about sex-change therapy, upon which the court didn't rule, I don't believe. The foundation of the decision was that the State is allowed to make up rules in cases for which a rational basis can be shown, "rational" meaning makes some kind of sense, upon which foundation the case seems correctly decided. In Bizzarro California, aka North Carolina, if the State passes a law mandating that all adolescents shall have access to Gender Affirmation Therapy, I think it's going to be hard to show that it does not pass the "rational basis" test, given appropriate judicial deference to the legislature and all.

    So. We can ask, is it good for the State to make reasonable rules? Clark says no; Ken, evidently, wavers.

  22. nl7 says:

    En passant: the government endorses DARE, which is worse than allowing licensed professionals to provide it. The government is forcing taxpayers to support it, so the bar of evidence should be higher. But my point is that California is not interested in efficacy, it's interested in social signaling. That means this is motivated by displeasure with the otherwise protected viewpoints of conservative bigots.

    Grim: don't you think that's your personal viewpoint? Plenty of people think it's immoral and wrong to be gay and that it's harmful to your life and your soul. I entirely disagree with them, but we can't simply substitute our viewpoints for others'. I believe religion and spirituality are often damaging and always a waste of time, but that doesn't make it appropriate to forbid what I see as superstitions by others.

    Zak: I agree that you could attempt to construct such a study and I suspect (without bothering to inquire) it's been done already. And I'm also entirely certain that you could easily construct studies in a way intended to prove whatever conclusion you wanted. Which is why plenty of intelligent people believe vaccines cause autism, cell phones cause cancer, and bovine growth hormone is unhealthy. The fact remains that people will first decide what they believe, then find studies to back them up.

    Moreover, nobody in California is turning their eye toward banning all sorts of other practices by medical professionals that have zero scientific grounding. Insurers must cover acupuncture, which is either a placebo or a scam. So why ban conversion therapy? To stick California's thumb in the eye of bigots in Texas and Alabama. Which is not a constitutional reason to prohibit talking to teenagers about God and sex in exchange for money.

  23. En Passant says:

    nl7 wrote Aug 29, 2013 @9:38 pm:

    En passant: the government endorses DARE, which is worse than allowing licensed professionals to provide it. The government is forcing taxpayers to support it, so the bar of evidence should be higher. …

    Yes, I know that. I abhor both "conversion therapy" and D.A.R.E.

    But the law governing practice of licensed professions is not the same as the law that governs politics and school programs. The means for stopping one is not the same as the means for stopping the other.

    The standard of effectiveness for qualifying medical procedures is not set by the same organizations who evaluate effectiveness for school programs.

    I am not denying your claim that the one is as bad or worse than the other. I am saying that the courts must rule on existing law, not the law we might wish to exist.

  24. nl7 says:

    Zak: Did they make you fill out DARE workbooks? Some days the DARE officer came to class and we had to do classwork about why drugs are bad and kill you. I think it took me a while to realize nobody would ever grade it.

  25. nl7 says:

    En passant: my point is that California is making a cultural statement, not rigidly pursuing professional excellence or scientific ethics. Which is why they funded pointless things like DARE and require health insurers to carry services with zero scientific support.

    They wrote a policy to specifically target this practice favored by a religious and social minority (conservative religious bigots). They didn't write a neutral policy saying that every professional must only participate in proven treatments.

    You can point to efficacy, but the rule is about culture. That's not appropriate.

  26. David says:

    "any practices by mental health providers[1] that seek to change an individual’s sexual orientation[,] . . . includ[ing] efforts to change behaviors or gender expressions, or to eliminate or reduce sexual or romantic attractions or feelings toward individuals of the same sex."

    They're banning therapy based on the GOAL of the therapy. That seems unique. That's like seeing that DARE is counterproductive and therefore banning attempts to get kids to not use drugs.

  27. Jake says:

    They wrote a policy to specifically target this practice favored by a religious and social minority (conservative religious bigots)

    It seems to me that they did it in a very limited way. There is nothing preventing any one of those "conservative religious bigots" from making an informed, adult decision and checking themselves into conversion therapy.

    The only thing that this statute (law/regulation/legal-thing) prevents the minority from doing is pushing uninformed, emotionally vulnerable children into this same therapy.

    Once a child turns into a legal adult, I have 100% no problem with them checking themselves into such a program. At that point, their parents/guardians have absolutely no legal recourse to force them into the program if they don't want to go, so (in theory) this process should be purely voluntary.

    As far as I can see, this law seems to prevent 1)anybody from having a 2)licensed 3)therapist attempt to change 4)a child's 5)sexual preferences 6)from gay to straight.

    I think you have a point about it being targeted, though. I feel like 6) wouldn't actually be in a perfectly fair law. If the law were perfectly fair, it would just prohibit the changing of a child's sexual preference or gender identity at all. I would consider this an error in the law. Fortunately, that hole seems to be covered by the nice bandage that is complete and utter lack of straight->gay conversion therapies performed by licensed practitioners.

  28. Mark - Lord of the Albino Squirrels says:

    @nl7

    "If you assume that conversion is seldom or never truly effective, or that non-standard sexuality is a perfectly acceptable choice, or that depression and suicide are far bigger risks to gay teens than eternal damnation, or that bigotry is a key part of conversion therapy, then it seems highly reasonable to ban its practice on minors.

    But if you assume a neutral viewpoint, where conversion might or might not be effective, might or might not have proper priorities, might or might not be motivated by hatred or love, then it's hard to see why parents could not exercise their judgment for their children."

    If I assume a neutral viewpoint it is actually rather difficult to see why parents could exercise their judgement for their children to a greater degree than they could not exercise that judgement. After all, their judgement may or may not be any more justified than the child's (or a petunia's, or a stone's, or using a magic 8 ball).

    Can you give me an example of any correct, justified, or good law created from the neutral viewpoint of your premise? How would heavy doses of mercury taken internally for a wasp sting be any more a "good" or "bad" idea than cleaning the wound and doing nothing under those terms?

  29. Doctor X says:

    nl7

    Sorry, been busy:

    Just wanted to point that, in my understanding, this bans even conversion therapy that relies only on talking.

    Talking is not benign to children and young adults coming to terms with their sexuality–whatever it is.

    Done properly, you can do well after trephanation. It is done every day in hospitals that offer neurosurgery. Have to drill to get into the head! En passant, one of the greatest negative evidences against the quack claims of trephanation is the thousands of people every year who do not received the promised benefits.

    There is a clinical indication for trephanation–you have to get into the skull to get to the brain.

    There is none for this conversion quackery.

    The comparison to sexual abuse remains apt–this is abuse. It is nothing but abuse. It is trying to force upon a child [THE CHILDREN!–Ed.] hush! a child and an adolescent the notion that his natural sexual inclinations are not only abnormal, but shameful to criminal.

  30. @nl7 The key to the decision is that the law does not prohibit people from attempting to "un-gay" children; it merely prohibits licensed professional therapists from presenting it as a therapy.

    So, if your imam believes that they can cure your child of homosexuality, they're allowed to offer it as a service. Similarly, if I, as a software engineer, claim that I can cure your child of homosexuality, that's also OK.

    What's not OK is things like a psychiatrist offering it as a therapy; if they're also a church pastor, and ensure that it's clear that the "gay cure sessions" are not offered as part of their psychiatric care, but as part of their religious mission, it becomes OK again, as it's no longer being presented as a mental health therapy, but as a religious activity.

    In other words, it's a very, very narrow limit on speech that's easy to avoid unless your goal is to co-opt the authority of the mental health professions to make sexual orientation adjustment respectable to people who would otherwise dismiss it as quackery.

  31. Malc says:

    I reckon this was an appropriate decision, based on a two step analysis:

    1. For good and proper reasons, the state licenses practitioners in certain professions, including medical providers (and lawyers, construction workers, realtors…). These licenses are not a simple pay-the-fee-at-the-window license (like a fishing license), but involve qualifications, testing, etc.

    2. State-licensed practitioners benefit from having the imprimatur of the state endorsing their qualifications. The fact of the license provides some level of assurance that the practitioner has met certain standards — although the sufficiency of those standards is left to the consumer to decide.

    Those two points seem to absolutely confer on the state the right to have a say in what a licensed practitioner may do or say in the field in which they are licensed. This right is obviously not absolute, but it seems to me that it is unquestionably sufficient to invoke the "rational basis" standard.

    And it's worth noting that the "rational basis" standard doesn't care about some objective "correctness", rather it just cares that the basis is rational. There are plenty of wrong-but-rational policies…

  32. Wade says:

    All discussion about conversion therapy aside, doesn't this law also ban "sex offender treatment" programs aimed at juvenile sex offenders? Programs like that are the usual government response to children who engage in non-violent sexual activity with other children.

  33. James Pollock says:

    "how do you decide what's too 'dangerous' for parents to expose their children to it? "

    Majority vote in the legislature + signed by the executive + judicial review (if necessary).

    Some of the things we've got so far:
    riding a bike without a helmet
    riding in a car without a seatbelt
    consuming alcoholic beverages
    sexual activity

    "It also necessarily assumes that any religious goals have zero or near-zero value."
    No it doesn't. It requires that you go see a religious professional to have your religious needs addressed, instead of a mental health professional.

    " If the government entirely ignores the potential for salvation or damnation, then isn't it necessarily making a religious determination?"
    No, it's just saying that these issues are not mental health issues, to be addressed by evidence-based science and medicine.

    When the government limits religious conduct (yes, it CAN do this) it should totally ignore the religious aspects and focus ONLY on the objective harm it does. That's why it's illegal to rip people's hearts out and consume them at dawn, even if the practice was endorsed by Aztec clergy.

  34. @Wade

    SB 1172, the law in question is very tightly written (part of the reason it survived the First Amendment challenge). It only prohibits attempts to change a minor's sexual orientation, and not attempts to help minors to act lawfully and safely given their sexual orientation.

    In other words, as long as the "sex offender treatment" programs are neutral with respect to sexual orientation, they're legal. There's only an issue under this law if the program tries to prohibit any homosexual contact, but permits limited heterosexual contact.

  35. James Pollock says:

    "As far as I can see, this law seems to prevent 1)anybody from having a 2)licensed 3)therapist attempt to change 4)a child's 5)sexual preferences 6)from gay to straight.
    I think you have a point about it being targeted, though. I feel like 6) wouldn't actually be in a perfectly fair law. If the law were perfectly fair, it would just prohibit the changing of a child's sexual preference or gender identity at all. I would consider this an error in the law. Fortunately, that hole seems to be covered by the nice bandage that is complete and utter lack of straight->gay conversion therapies performed by licensed practitioners."

    There are people who are born not clearly of one gender, and may require treatment to settle into one gender or the other; this doesn't have the same ineffective/harmful problem that gay conversion therapy has but would otherwise hit numbers 1-5 of your elements.

  36. James Pollock says:

    "Grim: don't you think that's your personal viewpoint? Plenty of people think it's immoral and wrong to be gay and that it's harmful to your life and your soul. I entirely disagree with them, but we can't simply substitute our viewpoints for others'"

    If a gay adult comes to believe that being gay is immoral and wrong to be gay, they're more than welcome to undergo whatever "treatment" they want to get straight.

    If parents of a gay adolescent believe that being gay is immoral and wrong and seek to have their child converted, well, they're doing just what you said we mustn't do… imposing their viewpoint on others (specifically, the child).

    If a gay minor believes that being gay is immoral and wrong, and decides entirely independently of others that they wish to be converted… they can't legally get it. But they also can't get cigarettes, beer, or porn legally. What do cigarettes, beer, porn, and gay conversion therapy have in common? They're harmful when used as intended.

  37. Stephen H says:

    In response to nl7:

    "How do you decide what's too 'dangerous' for parents to expose their children to it?"

    Yes, there is a judgement involved in that decision. But we make that judgement in accepting that children should not drink alcohol, or drive cars, or be allowed to watch "adult" movies. If we do it for things that are of as little consequence as education, then surely we need to "think of the kiddies" when it comes to decent, science-based health care. (I'm scaring myself, because I always mistrust someone who claims something "for the kiddies").

    As for how this is reconciled to religious beliefs, well there's the rub. Personally, I don't care that someone's invisible friend should have an influence over their child's well-being. That said, many religious beliefs have been forced to change by society, and we don't have too many people arguing for the return of slavery or the wholesale massacre of other races simply for being "other". If one looks at the history of mainstream religions, their beliefs have moved with the times, and this is just another area where society will win – in much the same way as the recognition of women and the de-sinning of homosexuality.

    The problem I have is that while "faceless officials" should not be making parents' decisions for them, there are always instances where that has to occur due to the inability or unwillingness of parents to do what is best for the child. A child should not have their life or health put at risk by a parent.

    You also mentioned "That's tantamount to saying that adults have a right to religious belief, but their children don't – isn't it?" Brief answer? I don't think they have that right at the moment.

    Allegedly Francis Xavier said "Give me a child until he is seven and I will give you the man". I think he was largely correct, and that most people who have religious belief today had it instilled in them before they had a choice. I suggest this is borne out by the evidence of families who stay with the same belief system (Roman Catholic, Baptist, Muslim or whatever) their entire lives. Is that right, or good for the child? Does the child really get a choice?

  38. azazel1024 says:

    Uh, I kind of have to disagree on two of those four.

    Cigarettes and gay conversion have no proven health benefits at all and both have pretty much only shown negative consequences.

    Porn is a little neutral, a bit like gambling. For most, in moderation, there is no shown negative impacts and can potentially be a healthy activity for a person to engage in (granted, as a MINOR, maybe NOT, so it isn't that I don't support an age requirement to both activities).

    Beer/alcohol is less obvious, even as a minor. I do not support lowering drinking ages. I don't support minors consuming alcohol. However, there are very, very few studies that examine the health effects on a minor from consuming limited amounts of alcohol. Similar studies on adults generally find more health benefits than detriments for light drinking of just about any stripe (beer, wine, even spirits). Of course the problem is moderation and when moderation is exceeded it is pretty much all detriment. Adults, to a degree, are better at moderation than a child who has no in-built sense of self control or mortality. So I do NOT agree with minors drinking, but I also firmly believe that there is no real evidence that very light consumption of alcohol is a health negative (sure, I don't think it would ever be good at, say, age 2, or 5 or whatever, but it also might not be deterimental if a 14 year old had half a beer a few times a week…just no real studies that look at that sort of thing).

  39. Richard says:

    nl7 wrote:

    that depression and suicide are far bigger risks to gay teens than eternal damnation

    Correct me if I'm wrong, but isn't suicide almost universally held (among Christians) to lead to eternal damnation anyway? As a (lapsed) Catholic, I remember it being called the "only unforgivable sin" in that you cannot repent for it.

    As far as I recall, homosexual behaviour is not nearly as universally held in the Christian Churches as being sinful, or as much of a sin – and homosexual orientation itself (absent sexual contact) is not usually regarded as sinful.

  40. Joel says:

    Okay it's been said before but I think it needs reiteration as some people seem to be missing it–this law is not making any determinations on what parents are allowed to believe or do. It is only restricting what licensed medical professionals are allowed to offer or claim as professionals. People are reading way too much into the specific nature of the treatment which is largely irrelevant to the ruling. The point is that a treatment that has been objectively determined to cause more harm than good is not allowed to be advertised or practiced by LICENSED professionals. Based on the arguments, the exact same decision would be made for a straight-to-gay therapy or a therapy that claims to cure bad behavior in children by yelling at them like a drill sergeant for an hour a day.

    If you're a licensed professional, the things you claim and the treatments you offer must meet strict regulatory requirements–that's the point of the license. The treatment in question, regardless of the social pressures behind it, did not meet objective muster, end of story. Most of the arguments against this ruling are on tangents that have little to nothing to do with the ruling itself.

  41. Shane says:

    @Stephen H

    I am in favour of mandatory vaccination, with exceptions only for those who have medical conditions preventing safe vaccination.

    The problem is that the vaccination will only be considered safe after it has been given. Safe and proven are never guarantees in any human endeavor.

    Some parents inflict all sorts of terrible things on their children. I do not condone this, but the truth is for every law that we enact to protect children there will be countless ways in which a bad parent will either circumvent these laws or inflict other terrible things. I say this because by walking down the path of interfering with parenting decisions we open up good parents to unintended consequences of the laws that we passed to protect children from bad parents. This is to me unconscionable.

  42. sb says:

    Richard,
    The Catholic Church has softened their stance on suicide. The teaching now is that the victim may not have accountability due to pain, depression, or other mental illness and so his/her ultimate fate is in God's hands. Otherwise the old position makes sense, sadly, in that it is a murder that doesn't give room for repentance.
    I'm not sure I expressed this very well. It's probably said better in, I think, the latest Catechism.

  43. George William Herbert says:

    Joel wrote:
    "If you're a licensed professional, the things you claim and the treatments you offer must meet strict regulatory requirements–that's the point of the license. The treatment in question, regardless of the social pressures behind it, did not meet objective muster, end of story. "

    One, I agree that the treatment has been found by medical studies to be both ineffective and dangerous (increased suicide risk, etc). I also agree it's morally a bad thing.

    That said, most medical treatments that turn out bad are not banned by law. Many "bad medications" turn out to still be effective for some few people or under some few circumstances. Many "bad treatments" may turn out useful for some fraction of patients, even if most patients would be harmed.

    There is a level of judging the circumstances and particulars of a case, where less common, sometimes nonstandard, sometimes generally "bad" treatment may be effective or necessary for one particular patient. This is up to the doctors or practitioners professional judgement.

    For Laetrille, this is not true. It's just toxic.

    For psychiatric and therapy areas, this treatment, I am a little concerned. I think it's horribly wrong myself, but as was pointed out, it got banned (as opposed to discredited and deprecated) because it was unpopular and anti-Gay.

    Other equally bad treatments are handled by professional organization level rules, education, and perhaps multiple malpractice lawsuits.

    Is something being unpopular / un-PC enough to justify singling it out for a law, as opposed to more traditional bad-treatment responses? Should it be illegal, as opposed to therapists losing their licenses and being sued into oblivion if they do it to a teen and a suicide ensues?

    This treatment is horrible, but the line being drawn is worrying or imperfect.

  44. James Pollock says:

    "That said, most medical treatments that turn out bad are not banned by law."

    That's because most medical treatments that turn out bad don't have people still doing them anyway. (no, I don't want to hear about your vaccination conspiracy theory or your flouridation rant).

  45. David says:

    "That's because most medical treatments that turn out bad don't have people still doing them anyway."

    Not licensed people, anyway. Because they wouldn't have their license for long.

    According to the quote of the law in the article, "A licensed mental health provider’s use of SOCE on a patient under 18 years of age is 'considered unprofessional conduct,” which will subject that provider to “discipline by the licensing entity for that mental health provider.'"

    My question is, why is there a law saying this instead of the California AMA or whatever just passing its own regulations? Surely the state legislature does not pass a law every time they want to change a requirement?

  46. Erwin says:

    @James
    …the practice of medicine is not yet particularly uniform. It would be far from unheard of for a particular practitioner to continue with therapeutic practices that had been shown to be non-efficacious and possibly downright harmful. Idiots are common everywhere. Consider the doctor (at Harvard, if I recall), who recommended mastectomies and attendant therapy based on positive mammographic findings. (of which perhaps 1/4 would be expected to be cancer.)

    That said, I sympathize with Herbert. Typical practice changes involve findings of …, leading to changes in practice guidelines, leading to legal liability, which enforces behavioral change. (over years and years and years) Banning a particular practice, even if it is bad medicine, leading to bad results, and pretty close to child abuse, is somewhat unusual. In the interests of not having a ton of laws on the books, it might have been better if the therapies simply resulted in liability and license loss. I dislike these therapies enough that I'd be tempted to support the existence of such laws, and I'm not upset that they've been upheld, but I'm not sure that legislating medical practice is wise. Suppose that tomorrow, someone realizes that there is actually a simple, effective treatment for homosexuality that doesn't cause harm… (unlikely – seems to be baked into the early brain structure, btw – although prenatal tests and/or treatment, although ethically dubious, are probably possible…) …it might well be that it couldn't be offered because of this or a similar law. I'm not sure that I could argue that the additional harm caused by creating a law balanced the probable gains of banning a harmful treatment. Personally, I'd prefer requiring a supermajority to pass a law without an expiration date.

    –Erwin

  47. Joel says:

    @George: I'm definitely not an expert on this, so feel free to correct me if wrong, but I was under the impression that there is actually a decent number of risky treatments that are regulated by law when applied to minors, due to the fact that the risk posed is deemed too great to trust to their guardians. That's the other key part of this legislation–it's specifically about the treatment as applied to minors. I still think people complaining that this ruling is based on popularity or social statements are ignoring the far more salient fact that the ruling is stopping so-called professionals from actively increasing teen depression and suicide rates. That's not just a "social concern". Did this perhaps get more attention than other possible cases due to social pressures? Sure. But that doesn't make the ruling any less relevant or sound. That just means that enough people were pushing for it to be settled. That's kind of how the system has to work when you have millions of people challenging the system every day.

  48. NS says:

    I believe that in some cases, wearing a standard 2- or 3-point seat belt can cause harm, and there is documentary evidence showing this to be the case. I am, however, required to wear one, provide functional ones to any and all passengers in my vehicle, and ensure any minors riding in my vehicle wear one. If I do not do these things as a vehicle operator licensed by the province of Ontario I am liable to fines, demerits to my license, or revocation of my license. This is because more studies have shown that wearing a 2-, or preferably 3-point seat belt is better than wearing none at all, and because somebody has to make the rules regarding what a license holder can and can't, must and mustn't do, or a license has no value, it's just a permit, a stupid, useless tax stamp that says you paid the man, so you can play.
    Believe in conversion therapy (I don't) or not, a challenge was brought on a law banning it being performed on children, and the law passed muster. If CT proponents want the law scrapped, they will have to do it in a way that doesn't conflate talk therapy with protected speech, which is as false an equivalency. It is not protected personal expression to do 200 mph on neighborhood streets, even if your intent was to express how fun it is to drive fast. I think the 9th go this one right. IANAL but there may be another challenge they could bring that has a basis in law, but that's where challenges like this have to be won or lost, in the existing law.
    For California parents who are worried that their kid may be gay, they are just as free to abuse there kids as they were before this law was ever thought up. The only thing that changes is now they can't claim it's good medicine. That's what has CT proponents up in arms, and I have no sympathy for them.

  49. NS says:

    @George William Herbert

    Risky treatment? Go for it, but show me where the disease you are treating shows up in the current DSM. Homosexuality got taken out in 1974. How can a licensed physician offer a treatment with serious acknowledged risks, and questionable (at freaking best) efficacy, for a "disease" not recognized by his profession?

  50. George William Herbert says:

    David wrote:
    "Not licensed people, anyway. Because they wouldn't have their license for long."
    (Preceded by James Pollack)

    Well, not necessarily true. Ignoring James reducto ad absurdum of vaccine deniers et al, we get things like Tournequets in trauma ( go back a long time, actively felt to be bad and strongly cautioned against when I was younger, now muchly back in use), experimental use of both hypothermic and warming treatments is areas of emergency and trauma treatment, DES' banning then eventual return to use in a completely opposite role, Thalidomide being banned then returning as a cancer drug…

    According to the quote of the law in the article, "A licensed mental health provider’s use of SOCE on a patient under 18 years of age is 'considered unprofessional conduct,” which will subject that provider to “discipline by the licensing entity for that mental health provider.'"

    My question is, why is there a law saying this instead of the California AMA or whatever just passing its own regulations? Surely the state legislature does not pass a law every time they want to change a requirement?

    Right.

    Agreeing that the therapy is bad (ineffective, dangerous) and immoral, and that the state has the legal right to regulate, does not mean this was at all the usual state action or that it was wise, even if it was legal.

  51. LiquidBlue says:

    I think that Ken makes an excellent point about the analysis performed in this decision. The existing licensing framework admits the regulation of medical practices and is generally accepted as both beneficial and necessary. Admitting that the licensing and regulatory framework as it exists is constitutional, then banning no to low benefit practices with demonstrably harmful results is a legitimate exercise of legislative discretion.

    However, I arrived at David's comment and I had to reevaluate my opinion. He points out that the law doesn't ban just harmful practices, but it outlaws the goal of conversion therapy. In the hypothetical that a safe and effective type of therapy were developed, it would still be illegal for a licensed practitioner to offer it. I think that this means that the law as written cannot be evaluated merely in the context of medical regulation.

  52. George William Herbert says:

    NS:
    "Risky treatment? Go for it, but show me where the disease you are treating shows up in the current DSM. Homosexuality got taken out in 1974. How can a licensed physician offer a treatment with serious acknowledged risks, and questionable (at freaking best) efficacy, for a "disease" not recognized by his profession?"

    I am not a mental health practitioner. I took a limited number of psych classes and have read DSM-IV and IV-R. My understanding, non-expert…

    Plenty of people are treated by therapists for conditions not found in DSM, current or prior.

    Marital stress that falls short of diagnosible depression or anxiety would be a leading candidate.

    Grief that has not yet lasted long enough to meet the clinical definitions of the various syndromes it can evolve into (depression, etc).

    People who generically feel they have a hard time coping and need a more grounded sounding board or advisor.

    Again, I don't feel homosexuality is in any way wrong, and I think this treatment is wrong and creepy…

  53. David says:

    "How can a licensed physician offer a treatment with serious acknowledged risks, and questionable (at freaking best) efficacy, for a 'disease' not recognized by his profession?"

    Slightly smaller than average breasts are not a recognized medical condition, and implants have known risks. Yet we allow breast implants, and we allow licensed professionals to implant them. (I have no idea whether minors are banned from getting them -certainly it seems like they would be a bad idea for anyone so young.)

  54. Zane Becker says:

    Got to agree with NS, homosexuality is not something that can be cured because it is not a disease!

  55. Curmudgeonly Ex-Clerk says:

    I'm ambivalent about this law in particular and have not examined the Ninth Circuit's decision well enough to know whether I regard it as sound. So I am open to education and persuasion on this topic. But the idea that state legislatures should get involved in the practice of medicine to the this extent seems problematic.

    Some of the comments above appear to be founded on an unrealistic assessment of how medicine is practiced. To take a single example, physicians can and do prescribe drugs for off-label uses with regularity. Off-label uses are, by definition, uses for which there is inadequate scientific evidence of efficacy and safety to be cleared as FDA-approved indications. Maybe they work for the off-label indication, or maybe they don't. Maybe the doctor has a decent enough reason for prescribing off-label (e.g., positive clinical experience) or maybe he doesn't (e.g., promotional flimflam). There's usually a fair amount of disagreement amongst physicians on these matters. Sometimes an off-label use is controversial. Are legislatures to step in and adjudicate these disputes now (or just the ones that touch on hot-button issues like homosexuality)?

    In general, I'd rather see individual physicians decide what they think the best treatments are and advise their patients accordingly. I doubt very much that elected politicians will do better, especially if "rational basis" (which historically has been carte blanche for legislatures to do whatever they darn well please on the slimmest of pretexts) is going to be the standard. And if the decision-maker is a physician, at least wronged patients or their bereaved can sue for malpractice. What's your remedy against the legislature if it's wrong?

  56. Zak N. says:

    And I'm also entirely certain that you could easily construct studies in a way intended to prove whatever conclusion you wanted.

    No you can't, not without violating normal rules for structuring a study. Believe it or not, asking people questions and extracting answers is an actual mode of scientific inquiry with established protocols and ethical guidelines. You're basically saying that since I could program my digital watch to count seconds as any length of time I want that any measurement involving time is meaningless. While it's appropriate to skeptically examine experimental methology for systematic bias when considering results, denouncing entire fields of inquiry as invalid because you can't be bothered to learn how they work is silly.

    @ nl7: I don't remember any D.A.R.E. workbooks, but I could have just blocked them out. I mostly remember the large, boring assemblies where I was made to shout insipid anti-drug slogans or else. And it was nowhere near as cool as the assemblies where the people from the zoo brought out parrots (or maybe macaws) and glowing fish.

  57. David says:

    While understanding why, I find it more than a bit strange from a "real world" view, that the outcome of this is that a professional cannot try to help a minor change their sexual orientation, but a non-professional can.

    That's a bit like saying a surgeon is forbidden from performing a particular type of surgery on a child, but a volunteer layperson can. Or that lawyers are forbidden from representing minors (we'll assume with a litigation guardian) in a particular type of matter, but volunteer non-lawyer laypeople can.

    If the potential harms to minors are serious enough to prohibit professional "treatment" of minors then I think it also serious enough to prohibit amateur "treatment" of minors (while agreeing that anyone, professional or not, has free speech rights e.g. telling someone something is different from actively treating them).

    I'm also wondering, given that from what I've read with respect to possible gender dysphoria of pre-pubescent children, there is some dispute over whether an accurate diagnosis can always be made and what is genuinely better for the child until they can make a more informed decision, could this run afoul of this prohibition if a professional encourages a child to wait until they're older to seek hormone therapy? I read a Dutch study from a few years ago in which I think about 15% of adults who had had surgery as minors disagreed with it as adults, which is a sizable enough percentage to raise concerns about accuracy and whether in some cases a child should be encouraged to, however they dress, defer more important permanent medical decisions?

    Oh, and re the comment about not having an abortion affecting a child into adulthood (I assume this is referring to, even if given up for adoption the fact and knowledge of having given birth having an effect), contrariwise having an abortion can have permanent effects both physical and psychological into adulthood. It strikes me as a bit ridiculous to treat minors as adults in this one respect (consent to abortion) but not to allow them to consent to other medical procedures without parental consent. Be consistent, one way or the other.

  58. Zak N. says:

    While understanding why, I find it more than a bit strange from a "real world" view, that the outcome of this is that a professional cannot try to help a minor change their sexual orientation, but a non-professional can.

    My understanding is that by claiming to be able to change a person's sexuality you are claiming to be able to perform a feat of therapy that, by definition, requires a license. A layperson who opens a practice claiming to 'cure the gays' would be guilty of practicing therapy without a license. A therapist who offers therapy that she claims can 'cure' homosexual behavior would be guilty of misconduct under this law and could loose her license. In effect the practice has been outlawed.

    There are still loopholes. For example, if you claim that a tenant of your faith is that ardent prayer and meditation can cure homosexuality that can't be touched unless you are "hurting the children". Example: Christian Scientists found Liable in Death of Diabetic Child.

  59. db says:

    Acupuncture did help alleviate my wrist pains, for what it's worth.

  60. GrimGhost says:

    nl7: "Grim: don't you think that's your personal viewpoint? Plenty of people think it's immoral and wrong to be gay and that it's harmful to your life and your soul. I entirely disagree with them…"

    Uh-huh, I totally believe that you disagree with the fundamentalists. In the same way as Fox News thinks that Barack Obama is the greatest man who ever lived.

    We're being trolled, people, and I'm not going to play anymore. Say hi to Pat Robertson, nl7, the next time you see him.

  61. En Passant says:

    @Curmudgeonly Ex-Clerk at Aug 30, 2013 @11:29 am:

    I generally agree with your points that physicians should have latitude for off-label drug applications, etc.

    But I'm not as concerned as you seem to be that Pickup heralds future undue legislative intrusion into medical practice.

    Among my reasons, not based on law, but based on my simple minded observation of the social milieu and the politics involved — From page 13:

    … The legislature relied on the well documented, prevailing opinion of the medical and psychological community that SOCE has not been shown to be effective and that it creates a potential risk of serious harm to those who experience it. Specifically, the legislature relied on position statements, articles, and reports published by the following organizations: the American Psychological Association, the American Psychiatric Association, the American School Counselor Association, the American Academy of Pediatrics, the American Medical Association, the National Association of Social Workers, the American Counseling Association, the American Psychoanalytic Association, the American Academy of Child and Adolescent Psychiatry, and the Pan American Health Organization.

    These are widely accepted medical practice governing bodies. The proponents of the therapy were specifically religious based organizations.

    That's no guarantee that legislatures won't pass stupid statutes regulating medical practice, especially if the mainstream medical practice organizations get stupid. But it does tend to indicate that the legislature got it right about this statute.

    Furthermore, the court deftly distinguished free speech (as in Conant (which give all patients information and choice) from active treatments like "reparative therapy" on minors, which do not give the patient any choice to undergo treatment. So any physician can lecture a minor on the evils of homosexuality. They just can't actively treat the minor as if he had a disease.

    Usually, but I admit not always, legislatures are not going to ban or mandate treatments based on the opinions of some relatively isolated religious based medical organizations.

    And usually, but I admit not always, the mainstream and accepted medical organizations are not going to nigh unanimously favor kooky mandates or bans on specific treatments.

    So, I'm not expecting an avalanche of legislative bans and mandates on specific treatment to arise due to the Pickup ruling.

  62. Erwin says:

    @Zak My understanding is that, as long as you don't claim to be effective, you're still welcome to abuse children with CT, sadly.

    @Zane Dunno about sickness – but sexual orientation in general does seem to be a function of brain structure that's hardcoded sometime in the womb. 'Treating' sexual orientation post-birth is probably not going to be easily effective – and mostly just involves trying to convince people that their natural drives are shameful. OTOH, the formation of those structures is (see rat studies, among others) driven strongly by prenatal hormones. A sickness? Definitely not. A choice? Not particularly – training usually does not strongly influence sexual identity. A potentially treatable abnormality? Arguably.* But then, blonde hair is also treatable.

    –Erwin
    *In fact, in retrospect, my in-laws arguments for giving pregnant women a completely calm environment may have been aimed in exactly that direction. (Some studies show that prenatal stress increases the incidence of male homosexuality.)

  63. Rich Rostrom says:

    I note that this law only prohibits "eliminat[ing] sexual… attractions … toward individuals of the same sex".

    What about "therapy" to "help children understand and enjoy sexual… attractions … toward individuals of the same sex" by curing them of bad repressions?

    Or to "cure" girls of their self-destructive attraction toward the male enemies of all women, and redirect their sexuality toward other females?

    Incidentally, those who criticize "conversion therapy" as ineffective and destructive may be right. But sex reassignment surgery is intrinsically destructive, and does not seem to be particuiarly effective. There are serious questions about the reality of the alleged underlying conditions, and lots of cases where SRS and associated treatments have had bad results.

    Yet California not only permits SRS, it pays for SRS, and even provides for hormone treatments for minors. California law is exceptionally friendly to "transgenderism", requiring schools to accept cross-dressed children.

    Why the difference? (Other than the obvious reason – that homosexuality and transgenderism have cultural and political favor.)

    Some commenters (and the OP) say they find "conversion therapy" disgusting. Why? Because it doesn't work, or is an imposition on the autonomy of the subject? Suppose, 10 or 15 years from now, a medical regimen is developed, which if followed during pregnancy and infancy, ensures that the child will not later develop homosexual attractions? Assume it just works. Would that be "disgusting"?

    In Samuel Delany's SF novel Triton, "refixation" of one's sexual inclinations is a routine outpatient procedure. Would that be "disgusting"?

    Some homosexuals state that given a choice, they would be heterosexual. (Thereby implying they have no choice, and should not be criminalized for doing what they do.) Is that disgusting?

  64. zeek says:

    Rich: Point me to an incidence of straight-to-gay conversion therapies. As far as I know such are non-existent or at least not common enough to be a major issue like the opposite. Either is an abberation absolutely. Your strawman doesn't work here.

  65. D.P. Jones says:

    Nope. You are wrong. Talking therapy is speech, and is of a fundamentally different nature than prescribing drugs or wrapping people in cloth and pillows (re-birthing therapy). The effort by the court to re-define "talking" as "doing" is obviously a vitiation of the First Amendment. So long as the therapist observes the law in regard to abuse of a minor, exposure of a minor to explicit material, etc., (laws that protect children without prejudicing a particular ideology) the state does not get to tell the therapist what to say and what not to say.

  66. AlphaCentauri says:

    Talk therapies can't be compared to performing surgery. It is legal for clergy to perform the same services for the people they serve as psychologists do, even though they aren't licensed therapists. They just can't claim it is medical rather than religious counseling.

    It is true that many homosexuals might be willing to consider such therapy if it were safe and effective. Life still is a lot easier if you're straight. And there is the argument that it impossible to develop such therapy if it's illegal. However, there are cases where young genetically male infants are either born without male genitalia or where they are damaged by disease or botched surgery. It has been standard under such tragic circumstances to "raise them as girls" with removal of the testes and treatment with estrogens … except the evidence now coming out is that it doesn't work. The kids tend to figure out they aren't girls long before anyone explains it to them. If gender and sexual orientation can be successfully re-trained, then those are the kids where it should be proven first.

  67. Erwin says:

    @zeek Besides the Navy? (anecdotally, a friend joined for exactly this reason, claims it worked, definitely liked the scenery) More seriously, raising children from an early age with zero contact with the opposite sex does have some effect. An effective prenatal hormone treatment could probably be devised.

    @Rich From my perspective, mostly because its harms (suicide) outweigh its benefits (none, really). SRS is at least controversial because there's dispute over benefits versus harms. CT is controversial because the medical establishment agrees that it is harmful and ineffective, and people still try it.

    –Erwin

  68. babaganusz says:

    James Pollock:

    "It also necessarily assumes that any religious goals have zero or near-zero value."

    No it doesn't. It requires that you go see a religious professional to have your religious needs addressed, instead of a mental health professional.

    thank you! that was not even 24 hours after what you were responding to, but i was actually starting to worry during the interim few comments that it wasn't being touched.

    but then… porn is "harmful when used as intended"? i'm far from a connoisseur, and characteristically unlikely to be an effective sex-positivity crusader, but… how's that?

  69. James Pollock says:

    "So long as the therapist observes the law in regard to abuse of a minor, exposure of a minor to explicit material, etc., (laws that protect children without prejudicing a particular ideology) the state does not get to tell the therapist what to say and what not to say."

    But the state DOES get to decide who has a license to practice and who does not.

  70. James Pollock says:

    "porn is "harmful when used as intended"? i'm far from a connoisseur, and characteristically unlikely to be an effective sex-positivity crusader, but… how's that?"

    Chafing.

  71. SIV says:

    striking down every law and regulation of medical practice

    Sounds good to me. I'm assuming broader laws against force and fraud still apply

  72. SIV says:

    Point me to an incidence of straight-to-gay conversion therapies. As far as I know such are non-existent or at least not common

    Fantasy straight-to-gay conversion is a common theme in BDSM practices and pornography.

  73. Marconi Darwin says:

    In short, I'm not sure how you can logically strike down this law — or even subject it to strict scrutiny — without striking down every law and regulation of medical practice that touches on any remotely controversial practice.

    Nor can Qasim be sure of leaving it standing without lifting all age limits qualifying minor-dom. "My religious prophet married someone who was six, religious freedom behooves me to explain how pleasurable life can be, married to a fifty three year old. No not by compulsion, but over a megaphone outside an elementary school after school lets off"

  74. David says:

    "But the state DOES get to decide who has a license to practice and who does not."

    Not on the basis of constitutionally protected speech, they don't. The court here even cites a case where they did not allow the government to prohibit doctors from recommending marijuana (although the government could still prevent them from providing or prescribing it.)

    The court gets around this by saying psychotherapy is not constitutionally protected speech. They're pretty much saying that "Nurse, give him 400 CC's of potassium" would not be protected speech, and therefore any psychotherapy would also not be protected. I'm not sure they're right about that. It seems to me that there's enough speech involved in psychotherapy to require something above "rational basis" to prohibit a course of therapy that relies solely on talking to the patient.

  75. David says:

    "In short, I'm not sure how you can logically strike down this law — or even subject it to strict scrutiny — without striking down every law and regulation of medical practice that touches on any remotely controversial practice."

    By relying on the speech vs action. You could still regulate medical practices, just not ones that rely on speech alone. (And even those you could regulate, you'd just need something beyond "rational basis" to do it.)

    "Nor can Qasim be sure of leaving it standing without lifting all age limits qualifying minor-dom."

    That's just silly. One obvious difference between this and your scenario is the approval of the parents and the minor. Surely if the parents wanted the child to read the book of that prophet and the child also wanted to read it, THAT would be protected, even if you thought it harmful.

  76. James Pollock says:

    "Not on the basis of constitutionally protected speech, they don't."

    Guess again. For example, lawyers can be disbarred for violating ethics rules; several of the ethics rules govern speech.

    Both lawyers and police can be disqualified from service for lack of moral fitness; the evidence of that unfitness may be speech (as is the case with this law. It doesn't say "do conversion therapy and lose your license", it says "conversion therapy is unprofessional".)

  77. David says:

    A lawyer can be disbarred for PROTECTED speech? Then we aren't protecting it very well.

  78. James Pollock says:

    "A lawyer can be disbarred for PROTECTED speech?"
    Yes. Yes, they can.

    "Then we aren't protecting it very well."
    Perhaps. YMMV.

  79. En Passant says:

    David wrote Aug 31, 2013 @10:50 am:

    A lawyer can be disbarred for PROTECTED speech? Then we aren't protecting it very well.

    Such speech restrictions arise from the fact that otherwise constitutionally protected speech may be limited by duties that various licensed professionals have to clients and others as prescribed by the licensing authority's rules, or ethical canons.

    For a simple example: "I think Joe killed Sally, and he lied about his involvement in her death" is protected speech for most people who publicly say it. But it would be a unprotected speech, a violation of various legal ethical codes, if publicly stated by Joe's defense attorney. Joe's attorney has a duty to Joe not to say that.

    In general, some licensed practitioner's speech can be subject to law or ethical canons which proscribe the speech. These usually arise from duties to clients, courts, or regulatory bodies which the practitioner agrees to undertake in exchange for being licensed in the particular profession.

  80. C. S. P. Schofield says:

    I'm fine with outlawing this kind of therapy for minors, or other persons not selecting it for themselves as legal adults. How about doing the same for gender reassignment surgery?

    Is that different? And if so, how?

  81. James Pollock says:

    "I'm fine with outlawing this kind of therapy for minors, or other persons not selecting it for themselves as legal adults. How about doing the same for gender reassignment surgery?
    Is that different? And if so, how?"

    AFAIK, they don't do gender reassignment surgery on minors. They do do assignment surgery, where the factory original equipment doesn't completely correlate to one gender or the other. I think it's mostly the same as/with other cosmetic procedures… they'll do it for functional reasons, but not aesthetics (of course, there are probably cases where improved aesthetics is a desired side effect, and there are probably cases where it is the major impact of the procedure.)

    In other words, we don't give boob implants to ten-year-olds, no matter how much they wish they had boobs, but if a 16-year old has a situation where one's a C-cup and the other's an A, that can probably be addressed.

  82. LauraW says:

    Is anyone doing involuntary gender reassignment surgery on minors? Or voluntary GRS on minors, for that matter? If that's not happening, I don't see the parallel here at all, and I'm not sure how we got on this tangent.

    The one GRS surgeon I know certainly won't do that. Instead, he'll let the patient stay on hormones (and possibly hormone suppressants) until they're able to give full, informed consent to such an irreversible procedure. Hormones are certainly not a complete treatment, and not enough for many gender dysphoric folks in the long term, but it can probably get someone through the years between puberty and majority.

    Disclaimer #1: I have a personal interest in this one. I had SRS 16 years ago. I probably wouldn't have killed myself without it, but I'd be pretty darn miserable.

    Disclaimer #2: I'm traveling and may not be able to respond to any responses very quickly.

  83. Anony Mouse says:

    Isn't loading up and already hormonally addled adolescent kind of a dangerous practice? Seems like mixing nitro and gasoline. I mean, it probably won't explode, but…

  84. C. S. P. Schofield says:

    I would like to apologize to any transgendered persons who may have been hurt by my previous post. I have a cousin who has made the tradition from female appearing to male, and the more I look into the issue the more I dislike the operations and the doctors involved. The transgendered persons are a separate issue entirely for me, but the operations strike me as outright fraud; the promise of something that, at this point of medical technology, cannot be.

    Am I wrong? My impression is gleaned from the popular culture, which it more often wrong on subtle issues than it is right. Am I getting angry on behalf of people who feel they have nothing to be angry about? Or is the efficacy of GRS as oversold in reality as it appears to be in passing?

    Is part transformation better than nothing at all?

  85. princessartemis says:

    @C.S.P. Schofield, to really know, you could ask your cousin. From what I understand after talking to some transgendered people, it could very well be that your cousin feels intense relief when he looks in the mirror now, after a shower, and does not see alien globs of flesh hanging from his chest. Depending on how far the surgery went, I bet he enjoys no longer bleeding from crevices in his body that he knows in his heart shouldn't be there. I don't know a lot of female-bodied women who miss that feature when it's gone, imagine the relief of a man!

    Really though, this is a question to ask your cousin, or other transgendered people, personally. Not looking for a study on what they think, going to them and finding out what they say about it for themselves. While it may make sense to be upset on their behalf if you feel it is oversold or not effective, it's a good idea to confirm with the target audience what they think of it. There are probably a lot of different opinions.

  86. LauraW says:

    I would like to apologize to any transgendered persons who may have been hurt by my previous post.

    No offense taken, by me anyway.

    I have a cousin who has made the tradition from female appearing to male, and the more I look into the issue the more I dislike the operations and the doctors involved.

    That is a tough one. The MtF transition I underwent is much easier in many ways than the FtM one that your cousin is going through. In particular, the outcome of the FtM genital surgery isn't that great compared to normal male anatomy. It's hard to create something from nothing, basically. The female-to-male folks do have an easier time with the hormones, because some of testosterone's effects are irreversible. But overall it kind of sucks to be them. :-(

    The MtF surgery on the other hand is quite advanced. I recently had kidney stone surgery (not fun; don't get them) and the urologist told me he was really impressed with my results from the other surgery. I think he was expecting to see raw butchery and was pleasantly surprised.

    Am I getting angry on behalf of people who feel they have nothing to be angry about?

    Pretty much. Some of us (especially MtF patients) are frustrated with the state of the art. But everyone I know has gone into the whole thing with their eyes open and has known what they were getting into. Personally, I interviewed two surgeons, talked to a bunch of former patients, and looked at those patients' naughty bits.

    Plus there's the this whole internet thing. :-) There's a pretty large community of T* folks who trade information on this stuff. It's pretty disconcerting for the doctors, I think, because every little thing they do gets discussed to death on the net. I remember posting that my surgeon had just "torn the nursing supervisor a new asshole" after she did something stupid to me. The rest of the nurses heard about it and were quite amused.

    If your cousin gets to the point of looking for an SRS surgeon, I can put him in touch with a really good one down in Arizona. I don't know if he does the FtM surgery, but I'd trust him to tell me who he thought was the best at it if that wasn't him. (He arguably is the best in the world at the MtF surgery, so "I'm the right one to do that" is within the realm of expected responses.)

    @princessartemis wrote:
    @C.S.P. Schofield, to really know, you could ask your cousin. From what I understand after talking to some transgendered people, it could very well be that your cousin feels intense relief when he looks in the mirror now

    This. I and most of the other TS's I know had a strong feeling from an early age that there was something wrong with us. In my case I didn't really know what was wrong until my 20's. Finally doing something about it was a huge relief. I second princessartemis's suggest to talk with your cousin and get his take on it.

    Sort of on topic for the blog: Ken, if you're still reading: Have you looked at the new anti-cyber-bullying law in California? Here's an LA Times article. You might have written about it already, but if so I missed it. It looks pretty scary at first glance. I think the bill was created in reaction to the suicide of Audrie Pott, a student at Saratoga High School. But as far as I can tell, we already have sexual assault laws that would cover what happened to her. We don't need new ones that target speech too.

  87. Tarrou says:

    Re: the transgendered

    I am all for people living and being treated as whatever gender they prefer. But I must think that there is no "right" to be surgically altered to make that act easier. Most practically, it has only been medically possible to even approximate an actual sex change within the past fifty years, and rights are not, and cannot be, contingent on current technology.

  88. Clark says:

    @C. S. P. Schofield

    I have a cousin who has made the tradition from female appearing to male, and the more I look into the issue the more I dislike the operations and the doctors involved. The transgendered persons are a separate issue entirely for me, but the operations strike me as outright fraud; the promise of something that, at this point of medical technology, cannot be.

    Am I wrong? My impression is gleaned from the popular culture, which it more often wrong on subtle issues than it is right. Am I getting angry on behalf of people who feel they have nothing to be angry about?

    My knowledge of the topic is somewhat lacking, given that it consists of idly googling "why does my female dog pee like a male dog?" several years ago.

    The research led me down the typical Google / Wikipedia rathole (at least, typical if you're the kind of person who can spend half an hour reading Wikipedia articles
    on the history of Chinese weight and volume measurements before popping your head up and realizing "wait – didn't I start off trying to learn who this 'Justin Bieber' person that's in the news is?").

    Some facts that stuck with me: gender orientation is based in a few different parts of the brain, various parts of MTF and FTM brains are much more similar to the brains of the gender that the individuals feel like than the brains of the gender that the individuals were born as, that in rats, dogs, and humans, you can change the brain orientation by applying homormones during brain development. In humans and dogs this has to be done in the early stages of gestation, but in rats it can be done up to several weeks after birth.

    Or is the efficacy of GRS as oversold in reality as it appears to be in passing?

    Is part transformation better than nothing at all?

    I've given this topic as much thought as I have the idea of living at 50 times the normal human rate.

    (Actually, I'm lying – I've thought a LOT more about what it would be like to move through the universe 50 times faster than others, how one could walk on water, how walking through a rainstorm would involve pushing the umbrella ahead of you through the nearly static raindrops, how all music would sound like drum and bass night at the local dance club, how long the nights would last, the fact that light would be shifted and visible light would be invisible but every radio antenna in the city core would be a bright beacon, etc.)

    If some advanced nanotech plague were to rewrite every cell in my body from XY to XX and simultaneously invert my penis into a vagina and start it menstruating, give me breasts, and cut my upper body strength by 50% – and leaving my brain male – then given the choice between living as a woman and using relatively crude technology to return me to the male status that my brain knows, even if it couldn't rewire my DNA back to the way it should be, I'd choose the crude technology and I'd choose it ASAP.

    Seriously, what the hell would I do as a woman? Not only would the menstruation freak me out (my normal technique of stanching bleeding with cyanocrylate glue would be massively inappropriate), but I don't have the first clue about handbags.

  89. LauraW says:

    > Not only would the menstruation freak me out (my normal technique of stanching bleeding with cyanocrylate glue would be massively inappropriate),

    You win the internets for today

  90. Anony Mouse says:

    "Seriously, what the hell would I do as a woman?"

    Spend the next three months fondling yourself in the bedroom.

  91. Clark says:

    @Anony Mouse

    "Seriously, what the hell would I do as a woman?"

    Spend the next three months fondling yourself in the bedroom.

    Maybe when I was 16.

    At my age I'd be more likely tell myself to please stop talking about that new HGTV show, because I really want to read up on what type of fertilizer is right for this Kentucky Bluegrass.

  92. David Schwartz says:

    "And usually, but I admit not always, the mainstream and accepted medical organizations are not going to nigh unanimously favor kooky mandates or bans on specific treatments."

    Well, their historical positions on homosexuality suggest otherwise. And who knows how the future will look on their current positions. But I'm not sure how you can do any better.

  93. Rick H. says:

    Tarrou: "But I must think that there is no "right" to be surgically altered… rights are not, and cannot be, contingent on current technology."

    Some of us believe that self-ownership of our own bodies is the most basic human right – from which all other rights derive.

  94. Zak N. says:

    @Rick: I think what was meant is that you don't have a right to make other people pay or perform the necessary surgery. If such surgery doesn't exist, then you can't have a right to it. If such surgery does exist, but is very expensive then you don't get to coerce other people into pay for it. If such surgery does exist, but it is the medical personnel's professional opinion that administering it would be harmful to the degree that it would violate principles of medical ethics then you don't get to force them to perform it.

    However, I agree with your sentiment that nobody should get to dictate what you do with your body. So if you want SRS and have the resources to pay for it, the law should not stop you from being able to get it.

    This obviously has the possibility for tension between what a patient and the medical professional view as the best therapy. That is a problem that cuts across the entire medical profession.

  95. Rick H. says:

    Zak: "I think what was meant is that you don't have a right to make other people pay or perform the necessary surgery."

    Sure, I would agree with this. The concept of "positive rights" is very silly and destructive.

  96. princessartemis says:

    @Laura W, You sound pretty happy with the outcome. I didn't catch your comment before, so any stepping on toes was unintentional.

    Hopefully FtM surgery will advance. The proper female analogous structures are pretty sizable, so once they figure out how to use them and leave them functional, they should be able to get something decent out of it.

  97. En Passant says:

    David Schwartz wrote Sep 2, 2013 @7:00 am:

    Well, their historical positions on homosexuality suggest otherwise. And who knows how the future will look on their current positions. But I'm not sure how you can do any better.

    That's why I said usually but not always.

    The APA declassified four years after Stonewall. That's the blink of an eye compared to how long it took to get to Stonewall.

    I think the takeaway lesson is Chuck Colson's apothegm from the same time, "If you've got them by the balls, their hearts and minds will follow." The key to preventing professional society recidivism in stupid is to make sure they always want to ask themselves "Do I feel lucky?"

    Whether to use legal canons or street cannons is just a pragmatic choice of weapons for the occasion.

  98. Samuel Adams says:

    This case raises the larger question of whether state boards of professional regulation are obsolete in the internet age. Before 1995 consumers and patients had no simple and effective way to compare and to verify the qualifications of professional practitioners. If the Medical Board, State Bar, etc. were to cease to exist tomorrow, and professional licensure by the state was no longer required, the public could merely look up the putative professional on HealthGrades, Avvo, etc. and obtain their own information on the person's qualifications and the experiences of other clients/patients. And practitioners would no longer be subject to having their speech censored by politically-correct legislators.

  99. James Pollock says:

    "This case raises the larger question of whether state boards of professional regulation are obsolete in the internet age."

    Amazingly, there are still a substantial number of American households which lack Internet access. And for medical care, there's still the little matter than many people don't look into medical care until they need it, and when they need it, they tend to need it in a time-sensitive manner. Next, there's the matter of public health. If enough people go to have their communicable diseases treated by quackery rather than by scientifically-proven medicine, it increase the chances that the non-infected will not remain that way. Finally, regulating quackery reduces the demand for rhinoceros horn, tiger kidney, and other bits of endangered animals. If we're going to ask some of the poorest nations on Earth to protect these species from extinction, the least we can do is stop paying the poachers for pieces of these animals that have no medical effectiveness whatsoever.

  100. rob says:

    My issue with the court's ruling is that it establishes "conversion therapy" as being wrong while not considering the issue of influencing children to be gay, or other sexual/gender choices. So it is against the law to try to influence a homo-sexual leaning child to hetero, but not against the law to influence a hetero-sexual leaning child to homo.

  101. Ken White says:

    @rob:

    My issue with the court's ruling is that it establishes "conversion therapy" as being wrong while not considering the issue of influencing children to be gay, or other sexual/gender choices. So it is against the law to try to influence a homo-sexual leaning child to hetero, but not against the law to influence a hetero-sexual leaning child to homo.

    Well, no. The law only covers licensed therapists. As I pointed out, ministers and parents and other unlicensed people are still free to try to influence kids to be hetero, or gay, as long as they don't violate other laws (so, for instance, it would probably be illegal to try to influence them either way by beating them with sticks).

    Also, if you read the quoted part of the law, you'd see that it doesn't specify that only gay —> straight therapy is illegal. It says:

    (b) (1) “Sexual orientation change efforts” means any practices by mental health providers that seek to change an individual’s sexual orientation. This includes efforts to change behaviors or gender expressions, or to eliminate or reduce sexual or romantic attractions or feelings toward individuals of the same sex.

    So. Just saying you are entirely wrong in every part of your comment.
    Although straight—>gay is not explicitly included, it's clearly included in the scope of the first sentence, and the "including" in the second sentence is generally interpreted to mean "including but not limited to."

  102. @David: I think there are reasonable concerns regarding whether a law that only restricts professionals, and not laymen, could possibly achieve the intended effect, which is to protect children from harm.

    I think the law in question does, by the following mechanism: when given the choice between either taking their child for treatment to an unlicensed practitioner and doing nothing, risk-averse parents will often prefer the latter.

    To make an analogy, say that I own my house, and I wish to have an electrical problem fixed. I can save money by hiring an unlicensed electrician; the risk is that they might screw up and burn my house down. If I can't afford a licensed electrician, I might just do nothing and deal with the electrical issue rather than risk such catastrophic consequences.

  103. Trent says:

    Interesting discussion. It's always interesting to me to read the anti-government crowds mental gymnastics to justify their Randian view that all government is bad.

    As other have pointed out this is a licensing issue and has no play with any other individuals.

    Part of being state licensed in ANY profession is that you agree to certain rules and regulations not just on practice but on ethics and numerous other related areas. As a licensed professional I'm obligated to purchase certain things, I'm obligated to carry state issued licensing identification on my person at all times and I'm obligated to take continuing education credits on an annual basis. State licensing law allows the state to impress (force) me into service in my professional capacity during an emergency. State law also allows me to be held in judgement by unelected non-judicial authorities appointed by a professional committee of licensed professionals that can fine me and put even me in jail without trial by jury (though their ability to incarcerate is severely limited). I have agreed to abide these rules of conduct as a condition of my ability to offer professional services in the states I'm licensed in. Offering these services without license is a violation of the law and people who pretend to be a licensed professional can be tried and convicted (under a real court, unlike licensed individuals) and sentenced to jail.

    And almost every one of these encroachments on my rights is 100% justified by what I can do in my professional capacity. Mistakes on my part could result in the deaths of large numbers of people. My services would be essential to life safety in emergency situations and the state and society at large has major interest in appropriating my services during said emergency (though they are obligated to pay my going rate after the emergency is resolved). For the state to validate who I am and my license during an emergency I'm obligated to carry identification issued by the licensing board at all times. I'm obligated to purchase appropriate devices that certify my signature. I'm obligated to obtain yearly continuing education to ensure my skills stay relevant and up to date. People pretending to be licensed in my field could cause you or your family to be killed by negligence and you would have NO idea how to verify the skills or even qualifications of anyone in my field beyond state licensing. And above all the state and society at large has a significant interest in being able to stop my ability to practice in the field if I'm found negligent in my abilities.

    If the state through competent review of scientific literature and testimony of qualified individuals and professional societies deems certain practices to be unethical the state is obligated to remove the license of people engaging in that practice. They are then free to engage in that practice without the claim of professional license all they want.

    The example used several times in this thread is acupuncture. I would be surprised if you could find licensed clinical physician were engaged in offering acupuncture. You might find them referring patients to acupuncture but you certainly won't find them performing it in their capacity as a physician. You might also find that physicians who offer propofol (a general anesthetic used in surgery) as a solution to insomnia have their licenses revoked due to unethical and dangerous behavior even though off label use of drugs is common. You might also find that doctors that suggest smoking crack is a cure for depression find their licenses revoked as well.

    Licensed professional are licensed because these professions have real ability to cause significant harm by irresponsible or negligent practice. Your barber is licensed to cut hair because if he/she does not follow proper hygiene requirements you could end up with a serious infection and even death. Your lawyer is licensed because malpractice can end up with your incarceration or even death. Your engineer is licensed because their signature could allow the construction of something that could kill thousands. Your realtor is licensed because without it the profession would be ripe with fraud (as it was in the past). Maybe we should live in a society where anyone can pretend to be dully qualified and let internet reviews decided. Personally I don't want to live in such a society.

  104. Rich Rostrom says:

    Ken White – Sep 3, 2013 @10:40 am: That's a good point, and I missed that aspect of the statute as written.

    zeek – Aug 30, 2013 @2:25 pm: Rich: Point me to an incidence of straight-to-gay conversion therapies.

    There were and still are some extreme feminists who think all women should be lesbian.

    Not that that's precisely equivalent (and as I see KW noted, the law covers that, not explicitly). But the sentiment is not non-existent.

  105. Curmudgeonly Ex-Clerk says:

    Trent:

    You discuss at some length the import and necessity of licensing. All good and well, but the sorts of mental health providers subject to the statute at issue almost certainly already are subject to state licensing requirements, and, as En Passant points out well above, multiple relevant professional organizations have condemned conversion therapy (specifically the American Psychological Association, the American Psychiatric Association, the American School Counselor Association, the American Academy of Pediatrics, the American Medical Association, the National Association of Social Workers, the American Counseling Association, the American Psychoanalytic Association, the American Academy of Child and Adolescent Psychiatry, and the Pan American Health Organization). But my sense is that the statute at issue goes well beyond standard professional licensing by effectively prohibiting a particular method of treatment.

    Everything you say about licensing could be true (and in broad brush strokes I do not disagree), but it does not seem to me that your arguments relating to licensing support the need for this particular statute about conversion therapy. If anything, the licensing regime and potential for discipline thereunder may undercut the need for an additional statute directed at the therapy, especially in light of its widespread professional condemnation.

    The examples you reference seem to indicate that this is so. For example, you indicate that a physician would have his license revoked for employing "propofol (a general anesthetic used in surgery) as a[n] [off-label] solution to insomnia." I'll accept that representation at face value. But have state legislatures felt the need to legislate that such off-label treatment is per se unprofessional conduct that will subject physicians to discipline? My sense (based on a relatively quick perusal of the California Business & Professions Code) is that the conversion-therapy statute is relatively distinct in this regard.

    En Passant:

    I appreciated your response to my original comment. I'm not entirely reassured, but your response was sensible and I am at at the very least less concerned about "undue legislative intrusion into medical practice." Thank you for the food for thought.

  106. Michael Ejercito says:

    Rich,

    does California allow minors to undergo sex reassignment surgery?

  107. James Pollock says:

    "But my sense is that the statute at issue goes well beyond standard professional licensing by effectively prohibiting a particular method of treatment."

    That's not what it does. The statute prohibits a particular goal of treatment, regardless of method.

    There are some assumptions of fact buried in the statute.
    1) conversion therapy does not, and cannot, work.
    2) there is inherent harm in making the attempt, or there is a significant risk of harm in making the attempt.

    IF you make these assumptions, THEN the statute is right and proper regulation. Either one by itself doesn't suggest a ban. There are lots and lots of "treatments" for things which do not work at all, and cannot work at all (except by placebo effect) and these are not prohibited, if there's no harm in doing them (megadoses of vitamins won't make your cold go away, but they won't harm you, either.) On the other side, lots of medical practices have definite harms and risks, but because they work, are not prohibited (any surgery, for example, produces a painful wound and a risk of post-op infection)
    It's only when you have both factors that banning something comes into play. The irregularity here is that so many people turn to conversion therapy even though there's no evidence it works, just because they WANT it to work so badly. (There's a bunch of these around actual diseases, too. For example, there's a common belief that having sex with a virgin can cure HIV infection. If that notion took hold in the U.S., would it be prudent to ban the practice? I think it would.)

  108. En Passant says:

    Curmudgeonly Ex-Clerk wrote Sep 3, 2013 @9:27 pm:

    I'm not entirely reassured, but your response was sensible and I am at at the very least less concerned about "undue legislative intrusion into medical practice."

    If it's any comfort, I'm not entirely reassured either. I strongly agree with your reasoning in that same comment (Aug 30, 2013 @11:29 am):

    And if the decision-maker is a physician, at least wronged patients or their bereaved can sue for malpractice. What's your remedy against the legislature if it's wrong?

    I think government gets things wrong far too often, even most of the time. I just see this time as one of the rare exceptions when government got it right. Here's my general reasoning:

    Minors have damned little choice in any healthcare decisions. If parents say you're going to the dentist, you're going to the dentist.

    Hypothetically, say some religious based professional organization of dentists declared it had discovered a "dental disease" manifested by homosexuality and apostacy, and curable by applying dentistry à la mode de Marathon Man. I think you'd agree it would be proper for the government to ban that "dental treatment" for children.

    I see "conversion therapy" or "reparative therapy" applied to minors as being much like the psychological version of Marathon Man dentistry than like any of the ordinary discomforts of medical treatments that parents in good faith routinely inflict upon children for the children's own good and best interests.

    Adults are free to choose "conversion therapy" or Marathon Man dentistry for themselves, although I doubt that many would. But because children have no choice in the matter, I think the legislature and the court got it right in banning licensed practitioners to practice "conversion therapy" on minors.

  109. Trent says:

    If anything, the licensing regime and potential for discipline thereunder may undercut the need for an additional statute directed at the therapy, especially in light of its widespread professional condemnation.

    That disciplinary regime is exactly why the statue is needed. You clearly have a significant (being a relative term, keep reading) portion of your licensed body engaged in conduct their professional organization and most of their professional peers believe is not only unethical but harmful. You have two options, you bring in every single therapist engaging in this behavior, you hold a license discipline hearing (typically involving 3-7 licensed professionals sitting in administrative hearing) you commence with a license suspension or other disciplinary action which can take anywhere from several days for the hearing and several months to render and impose a judgement.

    Now you multiply this out by however many licensed professionals are engaging in the behavior. Depending on that number in a state the size of California you could have a 5 year process for record number of license actions. On top of this because of the "political" nature of the people backing these therapies you are bound to have legal challenges at every single step of the process for a significant number of the licensees. Now you've turned your 5 year process into a 20 year process and that entire 20 years there are licensed therapists engaged in the process causing harm.

    Or you take option two. You pass a state statute making the behavior a strict violation of the licensing code. The legal challenge will be immediate, up front and settled before you even need to begin license revocations. You can now send out a letter to every licensed entity notifying them that such behavior is now grounds for license termination. Once the case is settled you send out a second letter saying the case is settled any licensee found engaging in the behavior has violated state licensing law and is in danger of license termination. The result, far fewer disciplinary actions. Far fewer court cases. Far fewer therapists get their license revoked (maybe because they didn't even know they shouldn't do it). And above all the behavior ends far sooner which reduces harm to therapy patients.

    Maybe option 1 is the way they should have handled it, personally I don't agree.

  110. Michael Ejercito says:

    The statute prohibits a particular goal of treatment, regardless of method.

    How could making people straight be inherently harmful regardless of the method?

    I can not think of another law which bans medical treatment based on the purpose, not the method.

    Let us suppose that there existed a method of treating spinal cord injuries which involved the use of genetically-modified parasitic worms attached at the point of severance. The treatment so far only affords limited mobility, and there is a high risk of meningitis associated with the treatment.

    Would the solution be to ban this particular form of treatment? Or would the solution be to ban all medical procedures aimed at treating spinal cord injuries?

    The conversion therapy ban is more like the latter than the former.

  111. James Pollock says:

    "Let us suppose that there existed a method of treating spinal cord injuries which involved the use of genetically-modified parasitic worms attached at the point of severance. The treatment so far only affords limited mobility, and there is a high risk of meningitis associated with the treatment.
    Would the solution be to ban this particular form of treatment? Or would the solution be to ban all medical procedures aimed at treating spinal cord injuries?
    The conversion therapy ban is more like the latter than the former."

    OK.
    Now let us imagine that the spinal-cord-worm treatment NEVER produces the desired result (beyond the placebo effect), and FREQUENTLY produces undesired side effects. That's closer to what conversion therapy is. Now let's suppose that if we tried to ban the specific procedure, there are still some people deluded into thinking it will work that there are doctors who will modify the procedure just enough to get out from under the ban, without changing the results, to meet the demand. Should we play whack-a-mole, enacting bans on each variation of the procedure as they become known, or just ban the whole class of procedures?

    "How could making people straight be inherently harmful regardless of the method?"
    Not making people straight… TRYING to make people straight. These are two different things. So, assuming you meant to ask "how could trying to make people straight be inherently harmful regardless of the method?", the answer is "If A) it can't be done, and B) there are harmful side effects".
    Yes, it would be neat if people could switch from being gay to being straight simply by exerting willpower. If that were so, then conversion therapy might have a place in the medical community, along with therapies to help people stop smoking or stop overeating, or stop doing anything that society frowns on and the person being treated wants to control.
    However, at present it appears that stopping being gay by willpower is in the same class of achievements as become bulletproof by willpower… it would be neat if you could do it, but you can't.

  112. Michael Ejercito says:

    The problem is that the ban is aimed at the goal of the procedure, rather than the specific methods of achieving the goal. Ther law at issue bans "any practices by mental health providers[1] that seek to change an individual’s sexual orientation[,] . . . includ[ing] efforts to change behaviors or gender expressions, or to eliminate or reduce sexual or romantic attractions or feelings toward individuals of the same sex.” Nothing in the legislation requires that the specific practices be ineffective or cause harmful side effects. The ban is based upon the goal of the treatment, not the substance of the treatment itself.

  113. MrQuizzles says:

    I can not think of another law which bans medical treatment based on the purpose, not the method.

    Euthanasia

  114. James Pollock says:

    "'I can not think of another law which bans medical treatment based on the purpose, not the method.'
    Euthanasia"

    Abortion.
    Some drug laws, too.
    "truth in advertising", as applied to drugs and medical equipment.
    Fraud as applied to unnecessary procedures (That is, you are legally allowed to have unncessary procedures performed, but your doctor is probably not allowed to bill for them.)