Rachael Sage

Court Allows Upholds Calif. Law Banning Ex-Gay Therapy

Judge rejects anti-gay groups constitutional challenges to law

Today, the U.S. Court of Appeals for the Ninth Circuit ruled that a 2012 California law prohibiting licensed therapists from attempting to change the sexual orientation or gender expression of a patient under 18 years old can be enforced. The ruling states that the plaintiffs in two legal challenges must drop their claim that the law infringes therapists’ free speech rights.   

The California law, known as Senate Bill 1172, was authored by Senator Ted Lieu and sponsored by Equality California, NCLR, Gaylesta, Courage Campaign, Lambda Legal, and Mental Health America of Northern California. Governor Jerry Brown signed the bill into law on September 29, 2012.

Writing for the court, Circuit Judge Susan Graber ruled that the California law is a “regulation of professional conduct” and therefore “does not violate the free speech rights of [mental health] practitioners or minor patients, is neither vague nor overbroad, and does not violate parents’ fundamental rights.”

The constitutionality of the California law was challenged in October 2012 in two lawsuits filed by anti-LGBT groups, primarily representing therapists who engage in the prohibited practices. The cases were assigned to two federal district judges in Sacramento, who in December 2012 reached differing conclusions about the plaintiffs’ chances of success. Judge William Shubb ruled that the plaintiffs’ First Amendment claims likely had merit and ordered that the State of California temporarily refrain from enforcing the law against the three plaintiffs in the case before him. Judge Kimberly Mueller ruled that the plaintiffs in the case before her likely could not succeed in their constitutional challenge because the law did not violate their free speech rights. Both rulings were appealed and heard by the same three-judge panel of the Ninth Circuit in April 2013.  

Today’s ruling upheld Judge Mueller’s decision and overturned Judge Shubb’s decision. In addition to rejecting the plaintiffs’ free speech claims, the Ninth Circuit ordered the two cases sent back to their respective district judges for resolution of the plaintiffs’ other legal challenges to the law.  

In the fall of 2012, Equality California filed a successful motion to intervene in one of the lawsuits to defend the law alongside California Attorney General Kamala Harris, who represents the State of California defendants. Equality California is represented in the cases by the National Center for Lesbian Rights (NCLR) and the law firm of Munger Tolles & Olson LLP.  

NCLR Legal Director Shannon Minter, who argued the case on behalf of Equality California in the Ninth Circuit, said, “This decision clears the way for this life-saving law to protect California youth from cruel and damaging practices that have been rejected by all leading medical and mental health professional organizations. The court of appeals ruled in very clear terms that state-licensed therapists do not have a constitutional right to engage in discredited practices that offer no health benefits and put LGBT youth at risk of severe harm, including depression and suicide.”

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