August 29, 2013
The Ninth Circuit Court of Appeals has ruled on two cases involving California’s law banning so-called LGBT ‘conversion therapy’. The appeals court has reversed a grant of a preliminary injunction in one challenge, and it has affirmed denial of a preliminary injunction in another. This means the law will be in effect during the proceedings. The case is remanded to the district court. While the unanimous opinion resolves the preliminary injunctions, the court used a standard of review that likely means there’s nothing for the district court to do:
Although we generally review for abuse of discretion a district court’s decision to grant or deny a preliminary injunction, we may undertake plenary review of the issues if a district court’s ruling “‘rests solely on a premise as to the applicable rule of law, and the facts are established or of no controlling relevance.’” Gorbach v. Reno, 219 F.3d 1087, 1091 (9th Cir. 2000) (en banc) (quoting Thornburgh v. Am. Coll. of Obstetricians & Gynecologists, 476 U.S. 747, 755–57 (1986)). Because those conditions are met here, we undertake plenary review and hold that SB 1172, as a regulation of professional conduct, does not violate the free speech rights of SOCE practitioners or minor patients, is neither vague nor overbroad, and does not violate parents’ fundamental rights. Accordingly, we reverse the order granting preliminary relief in Welch and affirm the denial of preliminary relief in Pickup.
In a footnote, the Ninth Circuit suggests the district court should address the religious freedom claim in the first instance.
Various groups are challenging the law on First Amendment and other grounds. The decision is summarized:
Reversing an order granting preliminary injunctive relief in Welch v. Brown, 13-15023, and affirming the denial of preliminary injunctive relief in Pickup v. Brown, 12-17681, the panel held that California Senate Bill 1172, which bans state-licensed mental health providers from engaging in “sexual orientation change efforts” with patients under 18 years of age, does not violate the free speech rights of practitioners or minor patients, is neither vague nor overbroad, and does not violate parents’ fundamental rights.
The panel held that Senate Bill 1172 regulates professional conduct, not speech and therefore was subject only to a rational basis review. The panel held that under its police power, California has authority to prohibit licensed mental health providers from administering therapies that the legislature has deemed harmful, and the fact that speech may be used to carry out those therapies does not turn the prohibitions of conduct into prohibitions of speech. The panel further concluded that the First Amendment does not prevent a state from regulating treatment even when that treatment is performed through speech alone. The panel concluded that the record demonstrated that the legislature acted rationally when it decided to protect the well-being of minors by prohibiting mental health providers from using “sexual orientation change efforts” on persons under 18.
The panel further held that: (1) SB 1172 did not implicate the right to freedom of association because freedom of association does not encompass the therapist-client relationship; (2) SB 1172 was neither void for vagueness nor overbroad because the text of SB 1172 was clear to a reasonable person and any incidental effect that the ban had on speech was small in comparison to its legitimate sweep; and (3) the ban did not infringe on the fundamental rights of parents because parents do not have the right to choose a specific type of provider for a specific medical or mental health treatment that the state has reasonably deemed harmful.
EqualityOnTrial will have more on this developing news.
Thanks to Kathleen Perrin for this filing