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Updated: Judge temporarily blocks enforcement of California’s ban on ‘ex gay therapy’ against plaintiffs challenging the law

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By Scottie Thomaston

California’s new law banning so-called gay ‘conversion therapy’ is facing a number of court challenges on First Amendment and other grounds. The law marks the first time that a state has banned the practice that has been deemed harmful by mainstream mental health organizations.

In one challenge, yesterday, the court granted a preliminary injunction allowing three therapists to continue the practice while the trial to determine the law’s constitutionality is ongoing. The judge writes that restrictions on the content of speech must be reviewed under strict scrutiny, the most rigorous form of judicial review, and the law is unlikely to survive that form of review.

Truth Wins Out issued a statement on the ruling:

“We are disappointed, but not deterred by the initial ruling by judge William Shubb. This is the beginning of a process that we feel confident will end in our favor. We have a powerful and incontrovertible case that reparative therapy is a dangerous practice that brazenly stands in direct opposition to standard mental health guidelines and procedures. It erroneously portrays homosexuality as a mental illness, gay people as mentally ill, and is consumer fraud by definition because its practitioners offer false hope and empty promises to their clients for a fee.”

“The idea that SB1172 is a violation of First Amendment rights is unfounded and wrongheaded. Medical and mental health professionals are held accountable for their speech and simply can’t say whatever they want if the results bring harm to their clients. For example, a doctor can’t tell a patient who is recovering from a recent heart attack to run a marathon. To do so would be to engage in speech that leads to malpractice. Similarly, a reparative therapist should not be able tell a 14 year old client that he or she is suffering from a mental illness and needs psychiatric care to transform from gay to straight. Therapists in clinical settings have always been expected to uphold professional standards and are held accountable for dangerous advice or deceptive practices that harm clients, or have the clients harm themselves.”

“Reparative therapy is social engineering with no medical basis and operates in an alternative reality. It was founded and solely based on the anti-gay prejudices of primarily deeply religious therapists who cruelly project their unscientific views onto vulnerable clients at a considerable financial price, as well as a significant cost to mental health. Rather than do what is in the best interest of their clients, such unethical ‘therapists’ routinely treat their clients as guinea pigs and have them in engage in bizarre treatment regimens that would be laughable if they weren’t so psychologically harmful.”

For these reasons, we view the temporary ruling as a speed bump in the inevitable process of protecting LGBT youth and their families from quacks. We look forward to the next round. The simple fact is, the more people learn about what reparative therapy truly is and what such therapists actually do in the clinic, the less they support it.”

The National Center for Lesbian Rights also responded:

“We are disappointed by the ruling but very pleased that the temporary delay in implementing this important law applies only to the three plaintiffs who brought this lawsuit. The judge stressed that he was willing to issue the ruling in part because it is temporary and applies only to three individuals. We are confident that as the case progresses, it will be clear to the court that this law is fundamentally no different than many other laws that regulate health care professionals to protect patients. That is especially important in this case because the harms to minors are so serious, including suicide and severe depression. Every leading medical and mental health organization in the country has rejected these practices and warned that they are not only completely ineffective, but dangerous. California did the right thing by enacting this law, and we are confident the courts will find that it is not only constitutional, but vitally necessary. It is heartbreaking to think of the terrible damage that has been done to so many LGBT youth and their families, and of the lives that have been lost or destroyed because of these discredited practices.

We applaud Senator Ted Liu, the bill’s author, lead sponsor Equality California, the California Legislature, and Governor Brown for protecting these young people and their families. Governor Brown’s statement when he signed this bill is right on target: ‘This bill bans non-scientific ‘therapies’ that have driven young people to depression and suicide. These practices have no basis in science or medicine and they will now be relegated to the dustbin of quackery.’

Importantly, the injunction currently appears to affect only three people, and it is a temporary ruling, put in place as a preliminary measure to ensure that the people challenging the law don’t face constitutional injury while the court decides the merits of the case. There has been no final ruling on the issue yet.

h/t Kathleen for this filing

2:12-cv-02484 #55

Update (2:15 p.m. Eastern): BuzzFeed’s Chris Geidner points to a ruling in a second case challenging SB1172 in which a district court judge denied a request for a preliminary injunction blocking the law from going into effect.  The decision, via Scribd, with a h/t to Kathleen, is below.

2:12-cv-02497 #80

17 Comments

  • 1. Mouse  |  December 4, 2012 at 10:52 am

    So – when it comes to allowing us to marry, they put a stay on that despite that allowing it to happen harms no one and not allowing it has real harm to gay couples.

    And now when it comes to preventing people from harming gay people with fake therapy, they put a stay on banning it, even though allowing it to continue causes severe measurable harm, and stopping it only "harms" people who would benefit financially from abusing gay people.

  • 2. exx-man  |  December 4, 2012 at 11:28 am

    From the Huffington Post article:

    "…Judge William Shubb made a decision just hours after a hearing on the issue, ruling that the First Amendment rights of psychiatrists, psychologists and other mental health professionals who engage in "reparative" or "conversion" therapy outweigh concern that the practice poses a danger to young people."

    This beyond credulity, that first amendement speech trumps reckless endangerment of minors. Just where, exactly did this charlatan go to law school?

  • 3. Tony  |  December 4, 2012 at 11:53 am

    Sounds like there needs to be some exorcism therapy appiled to Judge Shubb
    http://img.photobucket.com/albums/v296/rgsunico/S

  • 4. karen in kalifornia  |  December 4, 2012 at 12:14 pm

    Bares repeating. Consumers beware. Plaintiffs who are "above" the law and can continue to do harm to minors are Redlands psychiatrist Dr. Anthony Duk, Sand Diego Christian CA licensed Marriage and Family therapist Donald Welch, and student, soon to be quack, Aaron Biznet.karen

  • 5. Anthony from SoCal  |  December 4, 2012 at 1:08 pm

    Hmmmm. This will be an interesting case. As a former psychology student and gay man myself, I know that conversion therapy is bogus. Doesn't work. Tons of REAL scientific research and facts think it's all crap

    But by doing a little research, we can see that the 9th Circuit has somewhat (not exactly) touched on the subject:
    ALLA KONSTANTINOVA PITCHERSKAIA V . IMMIGRATION AND NATURALIZATION
    SERVICE (1997)
    http://archive.ca9.uscourts.gov/ca9/newopinions.n

    Basically an refugee/immigration case involving a Russian Lesbian and involuntary conversion therapy.

    How do I think it will help this case?

    "The court rejected the argument that the treatments to which Pitcherskaia had been subjected did not constitute persecution because they had been intended to help her, not harm her, and stated "human rights laws cannot be sidestepped by simply couching actions that torture mentally or physically in benevolent terms such as 'curing' or 'treating' the victims."

    Not an expert. Just my 2 cents.

    – Anthony from SoCal

  • 6. Eric  |  December 4, 2012 at 3:17 pm

    The judge in the other case mentioned that ruling in his rejection of the injunction.

  • 7. Anthony from SoCal  |  December 4, 2012 at 3:27 pm

    NO WAY!!! This I have to read. Could you link me the source? Judge Mueller cited the same case?! I should become a paralegal 🙂

  • 8. Anthony from SoCal  |  December 4, 2012 at 3:38 pm

    A-Ha!

    Found it! She also did cite it! Thanks, Eric!
    http://thinkprogress.org/wp-content/uploads/2012/

  • 9. Steve  |  December 4, 2012 at 1:48 pm

    Josh Weed is an ex-gay therapist himself. He works for a company that offers help to "people struggling with same-sex orientation" and whose two top people are closely affiliated with Evergreen, the official Mormon ex-gay program. Yeah, he might not try to turn people straight, but pushing them into doomed opposite-sex marriages isn't much better.

  • 10. Johyn  |  December 4, 2012 at 1:57 pm

    Why not a simply priesthood blessing, I thought that was the immediate cure all?

  • 11. fiona64  |  December 4, 2012 at 2:40 pm

    Yep, that's exactly my point.

  • 12. Gregory in SLC  |  December 4, 2012 at 3:19 pm

    I can't see mixing Mormon religion and Gay…and I tried living in a "mixed-gender marriage" (what Josh advocates for some) and success is not good. Josh Weed at recent conference in SLC discussing this and oppologizing:
    http://youngstranger.blogspot.com/2012/11/thou-sh

    At the beginning of the conference Josh Weed began his keynote address by apologizing to everybody who had been hurt through the misuse of the story he had published on his blog about his marriage to his wife Lolly. He told of a story he knew, in which the parents of a gay man had sent their son a copy of Josh's story, and told him that he would be welcome in their home if and only if he had managed to do the same thing Josh had done (i.e., marry a woman). Josh expressed grief at the widespread use of his story in this manner. He emphasized that those who used his story in this way had misunderstood its whole point, which was really to demonstrate the importance of unconditional love and acceptance.

  • 13. Steve  |  December 4, 2012 at 3:54 pm

    Not really buying it. He should have known that this is exactly what would happen. If he wants to live a fucked up life like that, fine. And at least he is sort of honest with his wife. But that doesn't mean he needed to blog about it and appear on television telling his story. What was the point of that if not to sell himself as an example for others?

  • 14. Gregory in SLC  |  December 4, 2012 at 4:05 pm

    AGREE!

  • 15. F Young  |  December 4, 2012 at 2:59 pm

    "But by doing a little research, we can see that the 9th Circuit has somewhat (not exactly) touched on the subject: "

    Thanks, Anthony from SoCal. That's very interesting, and you're the first to point this out.

  • 16. nightshayde  |  December 4, 2012 at 4:21 pm

    I just read on Yahoo that another judge has cleared the way for the ban to take effect January 1st EXCEPT for the three therapists listed in this lawsuit.

    The story is here:
    http://news.yahoo.com/judge-fears-gay-conversion-

  • 17. Judges in California Disa&hellip  |  December 6, 2012 at 7:35 pm

    […] Practically speaking what do these two rulings mean for SB1172 going forward? For right now, the law will go into effect as planned except as it pertains to the two professionals who challenged the law in Welch. If the judge in Welch rules at trial that SB1172 is unconstitutional, we will almost certainly see the 9th Circuit weigh in on the case. For more information on the responses to the decisions from the parties involved in the case, check out an article by Prop8trialtracker.com […]

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