Therapy Attempting To Turn Gay Youth Straight Is Still Legal In 48 States
Only two states — California and New Jersey — have laws banning therapists from attempting to change the sexual orientation or gender identity of minors, called conversion therapy. But where will such bans appear next?
Although mental health organizations have condemned the practice, so-called conversion therapy — or attempts to change someone's sexual orientation or gender identity — for minors is legal in all but two states. According to LGBT rights advocates fighting to stop it though, that could soon change.
Despite a series of failed bills earlier this year, advocates and lawmakers pushing to ban the controversial practice told BuzzFeed News they expect to pass at least one ban in the next few months, as well as an avalanche of similar proposals early next year when lawmakers in many states return to session.
"There could be one or maybe even two coming down the pike," said Samantha Ames, a staff attorney at the National Center for Lesbian Rights (NCLR) who heads up the group's #BornPerfect campaign against conversion therapy across the country. "What we're really going to be seeing is an explosion of these bills in January. Even if you're not paying attention, you're going to see another story every day about somebody else introducing a bill."
So far, California and New Jersey are the only two states that have laws on the books prohibiting licensed therapists from practicing such therapy on patients under 18 years old, but that likely won't be for long. Legislation to establish similar bans is currently active in a handful of states and Washington, D.C., according to NCLR. And two federal appeals courts have upheld both the California and New Jersey bans.
"Two years ago, we could barely get people to believe that conversion therapy is still going on in the Unites States," Ames said. "But these laws are seeing momentum now."
The proposal to prohibit therapists who are licensed by the District of Columbia from practicing conversion therapy on minors is expected to pass as soon as this fall. Proponents there say council members will likely mark up the bill in October and subsequently take the necessary votes that will likely see it passed into law.
D.C. Council Member Mary Cheh (D-Ward 3) introduced the proposal earlier this year, and told BuzzFeed News in a statement that the district has a "vital interest" in protecting children from conversion therapy.
"These so-called therapies are not based in science, they have been denounced by nearly every major mental health organization in the country, and they can exacerbate the associated psychological effects and anxiety a young person may feel when coming to terms with his or her sexual orientation," Cheh said. "I am glad that the District is at the forefront of the introduction of such bills, and I expect and hope that other state legislatures across the country follow suit."
Michigan State Rep. Adam Zemke, an Ann Arbor Democrat, introduced legislation in July that would establish a similar statewide ban, but the bill has yet to move forward. Previously, Zemke told BuzzFeed News he expects action on the measure after the November elections — potentially in the January lame-duck session — but that in the meantime, he's working to build bipartisan support for the ban.
Leading medical and psychological associations, such as the American Psychological Association, have discredited and criticized gay conversion therapy. The APA concluded that "efforts to change sexual orientation are unlikely to be successful and involve some risk of harm."
So far this year, however, pieces of legislation with the same aim stalled or failed in several states, like Illinois and New York, among others. But advocates and lawmakers say those fights are far from over.
And with that, the debate over gay conversion therapy and whether states have the authority to ban it, too, is far from over. In recent months, a number of former ex-gay leaders — who practiced and promoted gay conversion therapy — have come out publicly against it, warning of the harms it has caused them and others. However, in June the the Texas Republican Party updated its platform to essentially endorse conversion therapy. Shortly after that, Texas Gov. Rick Perry stepped into the debate by comparing being gay to being an alcoholic.
And on top of several new bills in upcoming legislative sessions, many of the bills that didn't move forward this year will be carried over to the new sessions or reintroduced in 2015, Ames said Whether support has grown or changed in some places, though, is unclear.
In Illinois, state Rep. Kelly Cassidy said she plans to reintroduce the bill next January, after it was voted down on the state's House floor in April, when some supporting lawmakers were absent from the chamber. Since then, she's worked to build a greater awareness around the issue on both sides of the aisle. "There's been more attention and understanding around this issue," Cassidy said when reached by phone. "I continue to hear from victims, and families harmed by conversion therapy, and so I remain committed to working to ban it."
However, Cassidy warned that this November's elections could potentially derail her efforts. Some state legislators who voted in favor of the state's marriage equality bill last November have been targeted and face tough challengers, particularly Democrats from the central part of the state. Losses in November could eat away at the 60 votes needed to pass the bill. On top of that, Illinois Gov. Pat Quinn, who pushed heavily to pass marriage equality, faces a tight race against his Republican challenger Bruce Rauner.
Notably, advocates contend that conversion therapy bans aren't a partisan issue, and point to the example of New Jersey Gov. Chris Christie signing the state' ban into law.
In New York, state Sen. Brad Hoylman, who has spearheaded the legislative effort to ban conversion therapy in his state, issued a statement Sept. 11 after the 3rd Circuit Court of Appeals upheld New Jersey's law, urging his fellow lawmakers to approve the legislation in the next session. Hoylman said the ruling "further underscores New York's obligation to follow California and New Jersey's bipartisan lead and outlaw the dangerous, discredited practice on young people."
"I call upon the leadership of the New York State Legislature to make passage of the legislation I carry with Assembly Member Deborah Glick a top priority when we reconvene in Albany this January," he said.
Proponents and lawmakers behind the bills say states have the authority to regulate professionals, including therapists and mental health care providers to serve the best interests of citizens. Opponents of the measures say these laws infringe on their right to free speech under the First Amendment and religious liberty of therapists, practitioners, and parents who seek conversion therapy for their children. Such were the arguments made in court when New Jersey's law was challenged.
In its ruling, the 3rd Circuit — like the 9th Circuit in California — affirmed that states have the authority to regulate professionals and their conduct. However, the 3rd Circuit judges disagreed with the 9th Circuit that conversion therapy should only be considered under the state's ban as "conduct" and not as protected free speech. The 3rd Circuit decided that it was speech, but that its protection is "diminished" because "Plaintiffs are speaking as state-licensed professionals within the confines of a professional relationship," according to the court.
This distinction between the two rulings is a reason why an attorney representing the therapists and conservative groups seeking to overturn New Jersey's law plans to ask the Supreme Court to hear an appeal in the case. He said his team expects to make the request as soon as next week. In June, the Supreme Court denied a request by conversion therapy proponents to hear an appeal of the 9th Circuit ruling, clearing the way for California's ban.
"The 3rd Circuit decision — in some respects — it was good for us," attorney Demetrios Stratis told BuzzFeed News. "We've always contended that this was not conduct; it was speech. Now you have two circuit appeals courts saying two different things."
Given that NCLR, in addition to promoting to new state laws to ban conversion therapy, has defended the existing laws in court, Ames, too, was focused on the 3rd Circuit ruling. When asked about the plans of the ban's opponents, however, Ames would say little about the prospect of the Supreme Court taking up a conversion therapy case.
"This will be interesting," she said. "We could have a very busy week next week."
An earlier version of this item quoted Samantha Ames saying, "I will have have a very busy week next week," instead of "We could have a very busy week next week."