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Losing Liberty In California and New Jersey: The Case of Minors with Unwanted Same-Sex Attractions

Gay rights supporters wear a California state flag,left, and a gay pride flag outside of the California State Supreme Court building in San Francisco, Thursday, May 15, 2008, after the Court ruled in favor of the right of same sex couples to wed.
Gay rights supporters wear a California state flag,left, and a gay pride flag outside of the California State Supreme Court building in San Francisco, Thursday, May 15, 2008, after the Court ruled in favor of the right of same sex couples to wed. | (Photo: AP Images / Paul Sakuma)

With the Supreme Court's June decision to not review the law this session, California Senate Bill 1172 has gone into effect. It joins a similar law in New Jersey that is currently working its way up the court system on appeal. The California law subjects every licensed mental health professional in California to disciplinary action and potential loss of licensure if they are found to have attempted to assist a minor client in the goal of modifying unwanted same-sex attractions and behaviors.

While no responsible professional works with youth coerced into such psychotherapy, these laws apply even when adolescent clients and their parents freely seek out such care. Because many more states are expected to introduce similar laws in upcoming state legislative sessions, we think the public and policy makers can learn from our experience as the two lead plaintiffs against the State of California. To this end, we mention just a few of the many concerns about the process through which these laws are being enacted.

Ideological uniformity. While the American Psychological Association (APA) does much good, its stances on debatable social issues such as those involving sexual orientation are firmly and consistently left-of-center, which may be one reason why its total membership represents only a minority of psychologists in America. Two examples from the many we could cite illustrate this point.

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First, in 2009, the APA released its Task Force Report on Appropriate Therapeutic Responses to Sexual Orientation, which reviewed the literature on sexual orientation change and constitutes the primary scholarly foundation for legislative bans of change-oriented professional care. What is less known is that five of the six task force members were lesbian, gay, or bisexually identified and none had actually practiced or were sympathetic to change-oriented approaches to care4. Several qualified conservative psychologists who had experience or sympathies in this area were nominated but all were rejected, having been deemed to come from a worldview unsuitable to the APA. We believe this selection bias limits the Report's usefulness as a basis for developing sound public policy.

Second, light was shed on the APA's ideological diversity problem when the leadership body of the organization in 2011 voted 157-0 to support same-sex marriage. Good people can disagree over this subject, but the fact that not one vote was cast in favor of preserving a male-female marital ideal certainly represents a statistically impossible lack of diversity in a country evenly divided on the subject.

The question of harm. The alleged harms from change-oriented professional care form the basis of the legal prohibition against this pursuit with minors. We share the concern that any risk of harm to minors be minimized. Unfortunately, the issue of harm has been accompanied by a great deal of distortion and lack of context. For example, California State Senator Ted Lieu, who introduced SB 1172, acknowledged it to be an attack on parental rights and compared the harms from the pursuit of change among minors with harms from alcohol and cigarettes.

To test the scientific merits of this analogy, one of us (CR) conducted a search of major psychological and medical databases, discovering thousands of scholarly studies pertaining to the harms to youth from cigarettes and alcohol. By contrast, only one empirical study suggested the possibility of harm from change-oriented therapy, which was not surprising given the researchers' exclusive recruitment of participants who reported harm.

Testimonials of harm at legislative hearings are high on drama but can be factually challenged, as was the case in the New Jersey hearings where one account of horrendous mistreatment appeared to be fabricated and based on the Ru Paul movie "But I'm a Cheerleader." Claims of harm from the use of aversive techniques such as electric shocks and induced vomiting are common, but not likely to be verified unless they either occurred several decades ago when such techniques were common in behavioral psychology or they were provided by religious and other unlicensed counselors, who are not covered under these laws. We believe politicians and professional associations who become aware of such alleged professional malfeasance through legislative hearings are ethically obligated to have these accusations investigated by the appropriate regulatory bodies.

Curiously, the law signed by Gov. Chris Christie specifically exempted from prohibition therapeutic assistance of minors seeking to change biological sex. Is it reasonable that a 17-year-old with an unwanted biological sex be allowed to surgically alter genitalia while another 17-year-old with unwanted same-sex attractions and behavior be prohibited from simply talking to a licensed therapist in a manner that could be construed as promoting change?

The context of harm. We have no doubt that historically some consumers of professional change-oriented psychological care have experienced various degrees of harm. To assert otherwise would be to claim a level of benefit unparalleled by any other approach to therapy. However, anecdotal accounts of harm can be counterbalanced by accounts of benefit (and one of us—DP—has personally experienced this).

Moreover, anecdotal evidence cannot tell us if the prevalence of reported harm from change-oriented therapy is any greater than from psychotherapy in general, where research indicates 5-10% of adults and 14-24% of minors experience deterioration while up to 50% experience no reliable change in their presenting concerns. Without scientifically establishing a prevalence rate of harm for change-oriented therapy significantly higher than these percentages, we believe the banning of such care provided by licensed professionals must be considered a form of governmental overreach.

Free speech issues. All sides of the legal action agreed that the change-oriented psychological care in question was only being provided through speech. The majority opinion of the 9th Circuit Court of Appeals to uphold the California law essentially held that the court did not have to evaluate the merits of the scientific claims being offered to justify the law. Instead, it was enough that the governmental decision makers determined there were harms sufficient to warrant the law.

We have concerns not only about integrity of the political and judicial processes involved in this outcome, but also with the potential for this precedent to be used against other therapeutic speech that activist groups and politicians dislike. As Justice O'Scannlain noted in his 9th Circuit dissent, this law enables the State of California to determine which spoken words of a licensed therapist are speech to be allowed or conduct to be banned.

Rather than work through existing regulatory agencies to ensure that ethical practices have been observed in the provision of professional change-oriented care, the State of California has seen fit to restrict by legislative fiat our professional judgment and our clients' right to sexual self-determination without definitive scientific justification. We hope by presenting just a small portion of the underreported back story to these laws, we have sufficiently illuminated what can happen when unchecked advocacy interests are allowed to shape the scientific and political process. We encourage politicians and the public considering similar legislation in their states to be mindful of these concerns.

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