Regulating Sexual Orientation Change Efforts: The California Approach, Its Limitations, and Potential Alternatives

By Victor, Jacob M. | The Yale Law Journal, March 2014 | Go to article overview

Regulating Sexual Orientation Change Efforts: The California Approach, Its Limitations, and Potential Alternatives


Victor, Jacob M., The Yale Law Journal


INTRODUCTION I. SB 1172'S ASSUMPTIONS ABOUT THE HARMFULNESS OF SEXUAL    ORIENTATION CHANCE EFFORTS     A. Causing or Exacerbating Diagnosable Psychological Harm     B. Reinforcing Stigma and Impeding Personal Development II. PROBLEMS WITH THE SB 1172 APPROACH      A. SB 1172 Assumes and Normalizes an Essentializing Conception of         Sexual Orientation      B. SB 1172 Is Particularly Vulnerable to First Amendment         Challenges      C. SB 1172 Could Foment Political Backlash III. AN ALTERNATIVE: DECEPTIVENESS-BASED REGULATION      A. SOCE's Ineffectiveness and the Case for Deception      B. A Deceptiveness-Based Approach to Regulating SOCE: California         as a Case Study         1. Deceptive Advertising         2. Making Unrealistic Promises to a Patient         3. A Note on the Potential for a Minors-Specific Approach         4. The Practicalities of Targeting SOCE Through an Anti-            Deception Regime     C. Benefits of an Anti-Deception Approach        1. This Approach Does Not Require the State to Adopt and Impose           Definitions of Sexual Identity        2. This Approach Would Not Lead to Substantial First Amendment           Litigation        3. This Approach Would Be Less Politically Contentious Since It           Avoids Implicating a "Parental Rights" Narrative     D. Objections CONCLUSION 

INTRODUCTION

In September 2012, the California legislature passed Senate Bill 1172 (SB 1172), which prohibits licensed psychotherapists from engaging in "sexual orientation change efforts" (SOCE) with minor patients. (1) This unprecedented statute aims to prevent any mental health professional from using techniques--commonly known as "conversion therapy" or "reparative therapy"--that attempt to eliminate homosexual attraction or foster heterosexual attraction when treating a minor patient. (2)

The passage of SB 1172 adds a new dimension to mainstream psychotherapy's complicated relationship with sexual orientation. As many scholars have pointed out, the majority of psychiatrists and psychologists once believed that same-sex attraction could be "cured" through psychotherapeutic intervention. (3) However, since homosexuality was removed from the Diagnostic and Statistical Manual of Mental Disorders in 1973, (4) the mainstream mental health establishment (5) has come to view homosexuality and bisexuality as benign, encouraging therapists to engage in practices that "affirm" a patient's sexual orientation. (6)

At the same time, several groups (7) have continued to insist that sexual orientation can be changed through therapy. (8) These "ex-gay" organizations, and therapists affiliated with them, continue to provide SOCE therapy and often market these services to minors from religious communities. (9) In the last several years, the mental health establishment has become increasingly concerned with these practices and has issued reports concluding that SOCE is ineffective and potentially harmful. (10) Lesbian, gay, and bisexual (LGB (11)) rights organizations have also begun publicly documenting the stories of individual patients subjected to SOCE practices, many of whom describe their treatments as emotionally or sexually abusive. (12)

The California legislature adopted SB 1172 in response to these new reports of SOCE's potential harmfulness, pointing to the state's "compelling interest in protecting the physical and psychological well-being of minors ... and in protecting its minors against exposure to serious harms caused by sexual orientation change efforts." (13) The legislation establishes that using SOCE therapy on a minor is "unprofessional conduct," (14) which provides grounds for a therapist to lose his license. (15) LGB rights groups, especially Equality California, were instrumental in galvanizing the state to act, and also framed the legislation as part of a broader effort to "protect and empower" LGB youth. (16) This strategy of seeking legislation that bans the use of SOCE therapy on minors has now become appealing to LGB rights groups nationwide. …

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