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Ninth Circuit declines to rehear challenge to California’s ban on LGBT ‘conversion therapy’

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The Ninth Circuit Court of Appeals has declined to rehear two cases challenging California’s ban on so-called “conversion therapy” for LGBT people. After the three-judge panel on the appeals court ruled that the law is constitutional back in August, the challengers sought rehearing en banc, essentially, requesting another hearing with a larger panel of judges. The latest order notes that the full court of appeals took a vote and “a majority of the nonrecused active judges failed to vote in favor of en banc rehearing.”

A dissent was filed, written by Judge O’Scannlain and joined by Judges Bea and Ikuta. No other dissenting votes were made public.

The ban was challenged as a First Amendment violation of speech, but the Ninth Circuit’s opinion upheld it as a permissible regulation of the medical profession, stating that it’s not a pure speech ban.

The dissenting opinion argues that the ban does infringe on speech, and that labeling it as “conduct” has potentially severe repercussions:

By labeling such speech as “conduct,” the panel’s opinion has entirely exempted such regulation from the First Amendment. In so doing, the panel contravenes recent Supreme Court precedent, ignores established free speech doctrine, misreads our cases, and thus insulates from First Amendment scrutiny California’s prohibition—in the guise of a professional regulation—of politically unpopular expression.

While the dissenting opinion focuses on the distinction between speech and conduct, arguing that the ban is a ban on “speech”, the dissenters note that they’re not taking a position on whether the ban passes constitutional muster; rather, they only write in dissent to suggest that it should be reviewed under a tougher standard since it implicates the First Amendment:

The regulation at issue may very well constitute a valid exercise of California’s police power: I take no view as to the merits of SB 1172, either as a matter of policy or on the question whether it would withstand strict or some intermediate level of scrutiny. But as to the threshold issue—may California remove from the First Amendment’s ambit the speech of certain professionals when the State disfavors its content or its purpose?—the Supreme Court has definitively and unquestionably said “No.” It is no longer within our discretion to disagree.

An amended opinion is attached to the filing. The Ninth Circuit’s order notes that no further petitions for rehearing will be taken up in the case, but the challengers have said they will petition the Supreme Court to review the Ninth Circuit’s decision.

A challenge to a similar ban in New Jersey is pending before the Third Circuit.

Thanks to Kathleen Perrin for this filing

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  • 1. Rick O.  |  January 30, 2014 at 11:55 am

    I thought the law dealt with the prohibition of applying (figurative) leaches and trepanning and charging for it (conduct) rather than talking about it as a matter of opinion, free of charge. I.e., medical regulation, which admittedly may be scant in the case of psychology. Anyone know the Supreme Court precedents to which the dissenters refer?

  • 2. KarlS  |  January 30, 2014 at 3:12 pm

    LOL…I actually knew what trepanning is (or was?) when I saw you had written it but I don't think I've read or heard it for 50 years. But the other thing involving leeches (not leaches) is actually a viable treatment in some cases even if it is icky. haha

  • 3. W. Kevin Vicklund  |  January 30, 2014 at 5:22 pm

    "Anyone know the Supreme Court precedents to which the dissenters refer?"

    Roe v. Wade

    Which is why I've always been a little uncomfortable with the ban from a tactical standpoint. But mainly, while I agree with the outcome in Roe v. Wade, I disagree with the reasoning (in part because of this type of situation).

  • 4. sfbob  |  January 30, 2014 at 3:25 pm

    The law does not prohibit a therapist from DISCUSSING "conversion therapy" with a minor or with that minor's parents. It also doesn't cover or apply to any practitioner who is licensed by the state.

  • 5. JayJonson  |  January 30, 2014 at 5:05 pm

    More info on the law and the Court's decision may be found here:

  • 6. Lymis  |  January 31, 2014 at 6:30 am

    While I understand what the dissenting judge seems to be trying to say – that there are still free speech aspects AS WELL AS conduct aspects to the question, they lose all my support the moment they categorize this as being merely "a politically unpopular expression."

    The unanimous professional opinions of all the major medical community groups is that this is actually harmful to the minors who are subjected to it. That takes it out of the purely political and into the practical

    Human sacrifice is politically unpopular, too, but that's not the primary reason it's forbidden.
    Lots of forms of fraud involve speech, but that doesn't keep them from being illegal.

    And it's not like this is the first time that forms of speech have been ruled to be appropriately constrained by valid governmental interests.

    Nor the first time that courts and laws have drawn a line between what minors may or may not be allowed to participate in, or forced into (or out of) by their parents, even when they are free to voluntarily seek it out as adults.

  • 7. Dr. Z  |  January 31, 2014 at 7:30 am

    O'Scannlain is a virulent homophobe who has gone way out of his way to attack us in the past.

  • 8. Equality On TrialCaliforn&hellip  |  February 4, 2014 at 4:11 pm

    […] 90-day clock started last week, when the Ninth Circuit declined to rehear the challenge en banc, with a panel of 11 appeals court judges. Three of the judges on that court […]

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