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Ninth Circuit Court of Appeals hears challenge to California’s ban on conversion therapy for LGBT youths

Conversion therapy cases

By Scottie Thomaston

Yesterday, the Ninth Circuit Court of Appeals heard arguments in cases testing the constitutionality of California’s recently-enacted ban on so called “conversion therapy” for LGBT youths. The district court judges in the two cases issued opposing rulings:

One refused to block the law after ruling the plaintiffs were unlikely to prove the prohibition unfairly tramples on their civil rights and should therefore be overturned. The other said he found the First Amendment issues presented by the ban to be compelling and ordered the state to temporarily exempt the three people named in the case before him.

Those are challenged by a three-judge panel for the Ninth Circuit, consisting of Chief Judge Alex Kozinski, Susan Graber, and Morgan Christen. Kozinski is an appointee of President Ronald Reagan, but he is not considered to be a social conservative. Graber and Christen are appointees of Presidents Clinton and Obama, respectively.

Post-argument reports suggested that the judges on the panel struggled to determine whether the ban should be viewed as speech or as simply a legislative regulation of the medical profession that is constitutionally permissible:

During nearly two hours of argument before a packed courtroom, attorneys for the therapists argued that the law violates free speech and religious rights. But the judges seemed likely to hold that the state has broad powers to regulate medical care — even if it’s exclusively based on talking — when it’s provided to minors.

“That really is the pivot point, whether this is speech at all or treatment,” Judge Morgan Christen told Mathew Staver of Liberty Counsel.

“Adults can get the counseling they wish,” Chief Judge Alex Kozinski added. “There’s no prohibition to that.”

The judges appeared be wrestling with how to get there, though, and lawyers on both sides struggled to answer their questions plainly. Deputy attorney general Alexandra Robert Gordon had trouble identifying empirical evidence of harm caused by so-called conversion therapy, while Kevin Snider of the Pacific Justice Institute likewise couldn’t point to proof that it actually works.

The cases reached the court on appeal at the beginning stages of the litigation: the Ninth Circuit will decide whether the preliminary injunction barring enforcement of the law against the named plaintiffs will stay in place. The answer to the question of whether the law attempts to regulate protected speech or whether it only regulates aspects of the medical question will likely have a huge impact on how the case proceeds. If the Ninth Circuit believes the law attempts to regulate speech that is constitutionally protected, then courts will have to scrutinize the ‘conversion therapy’ ban very carefully, making it less likely the ban would be upheld in the future. But if the court decides it’s simply a permitted regulation of the medical profession, it would not face a heightened level of judicial scrutiny.

There’s no way to know when a decision might come down, but the Ninth Circuit heard this challenge on an expedited schedule, making it likely they won’t take too long to issue a decision at this stage of the case.

Audio of yesterday’s oral arguments can be found here.


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