Tuesday, October 02, 2012

California's New Ban on "Reparative" Therapy

By Mike Dorf

California Governor Jerry Brown just signed into law a bill that forbids mental health providers from attempting to change the sexual orientation of any patient under the age of 18.  Here I want to explore two questions: 1) Why did California ban voluntary as well as involuntary sexual-orientation-change therapy for minors? and 2) Why doesn't the ban apply to such therapy for adults?

1) As the legislative findings contained in the law recount, efforts to "repair" or "cure" young people of homosexuality or bisexuality are flawed in various ways.  To name a few:
   a) "Reparative" therapy begins from the outdated premise that homosexuality and bisexuality are diseases or otherwise inferior ways of being.
   b) Reparative therapy doesn't work.
   c) Reparative therapy harms minors subject to it.  The findings in the law list the following harmful effects:
confusion, depression, guilt, helplessness, hopelessness, shame, social withdrawal, suicidality, substance abuse, stress, disappointment, self-blame, decreased self-esteem and authenticity to others, increased self-hatred, hostility and blame toward parents, feelings of anger and betrayal, loss of friends and potential romantic partners, problems in sexual and emotional intimacy, sexual dysfunction, high-risk sexual behaviors, a feeling of being dehumanized and untrue to self, a loss of faith, and a sense of having wasted time and resources. 
Despite all of that, one could imagine an objection to the law that says that minors should be warned of the risks of reparative therapy but should be given the option of deciding whether it is right for them.  Such an objection, however, overlooks the fact that many minors who go to reparative therapy in fact are "sent" there by parents.  Any mechanism for sorting minors who truly want to change their sexual orientation from those who are being coerced to attend would be error-prone--and given the therapy's dangers, would not be justified.

2) So why allow reparative therapy even for adults?  We can assume that an adult seeking reparative therapy is doing so voluntarily, but so what?  There are all sorts of medical treatments that people might seek voluntarily that the government nonetheless forbids on grounds of efficacy or harm.  Here we have a therapy that generally does not "work" and that causes serious harm.  Although the description of adverse effects quoted above comes in the context of a discussion of the impact of reparative therapy on young people, many of the harms can also be found in adults.

To be sure, there are some things that are bad for everyone that we nonetheless permit adults but not minors to do or have: alcohol and tobacco are prime examples.  However, there are two sorts of judgments in play there, neither of which seems applicable here.

First, ideal social policy might ban alcohol and tobacco even for adults but we have reason to worry that banning these substances will lead to a black market and associated crime.  By contrast, there is no reason to think that a mob-dominated black market for reparative therapy--replete with turf wars between gangs of rogue therapists--will develop as a result of the California ban.

Second, another piece of the judgment to regulate and tax rather than ban alcohol and tobacco for adults is that adults should have the liberty to choose for themselves whether to engage in these vices.  Many people use alcohol in moderation and while that's less true of cigarettes (because of the nature of the addiction), it's still possible to think that adults should be permitted to make the choice for themselves whether to risk their health in exchange for the pleasures of drinking or smoking.

This rationale does not apply to reparative therapy.  Psychotherapy may be a pleasurable or otherwise satisfying experience for many patients but in general, we do not regard medical treatment as a kind of vice that grownups get to decide whether to enjoy.  Rather, because of information asymmetries, drugs and medical treatments are subject to extensive paternalistic regulation.  That regulation is far from perfect--and much conventional wisdom in medicine is not evidence-based--but in principle America's libertarian streak does not apply to medical treatment.

Perhaps most importantly, the underlying premise of reparative therapy--that homosexuality and bisexuality are "abnormalities" warranting therapy--is no less offensive and discredited for adults than for minors.  The fact that the majority is offended by some individual choice should not ordinarily be a sufficient basis for banning that choice but where, as here, the choice at issue is a choice to undergo ineffective and harmful treatment, there is no reason to worry that the government is infringing a valuable liberty simply in order to make a point.

Accordingly, the (sound) logic of California's ban on reparative therapy for minors could sensibly be extended to adults too. 


Sam Rickless said...

I have sympathies with your basic idea, Michael, but I wonder how this plays out with respect to religion. Some religious authorities teach that homosexuality is an abomination and that the best thing that a devout person can do is eradicate homosexual longings. Many of these religious authorities set themselves up as counselors, and parents send their children to these counselors. These religious counselors (priests, pastors, and so on) do not "market" themselves as psychotherapists, but they occupy a similar role. The effects of their efforts can be (and often are) just as devastating as the effects you list (confusion, depression, guilt, and so on). So does your principle entail that religious authorities should not be permitted to "counsel" homosexual teens, by, say, informing them of the consequences they will face if they continue "sinning" by engaging in forms of disapproved sexual activity? Does your principle extend to the banning of such "counseling" for adults? Is there some sort of special exception for religious freedom? But why should religion be given special treatment? There is even less in the way of "evidence" for the pronouncements of religious authorities than there is for the pronouncements of reparative therapists.

Hashim said...

How is it consistent with the 1A to ban mental-health providers from telling youth information that their parents want them to hear (let alone to ban them from speaking to adults, as you advocate)? And if the answer is that mental-health providers somehow have less 1A rights because they're "regulated professionals," won't this inevitably lead to reparative therapy shifting to non-professionals (e.g., religious groups, per Sam's comment) whose speech undoubtedly can't be suppressed just because the State of California disagrees with it, on "factual" grounds or otherwise.

Michael C. Dorf said...

Sam and Hashim raise a very interesting question to which I think there's a relatively conventional answer: There's a difference between one holding oneself out as offering a medical service and offering a religious service. Someone who sells snake oil that, he claims, will cure baldness, can be subject to laws concerning fraud, false advertising and pharmaceutical licensing. But if a clergy member advises his flock to pray to God to restore his hair, that is indeed protected speech. (The same juxtaposition applies if the secular fraudster is using a talking cure for baldness rather than selling a product.)

Now, I recognize that the foregoing straightforward answer does seem to contradict the Smith rule--as it gives religious speech an exemption from a general prohibition. However, as I have noted before, I think Hosanna Tabor weakens Smith in various ways, and this may be one of them.

Michael C. Dorf said...

One further thought: Most traditional religions condemn homosexual acts rather than homosexual orientation, so it's quite possible that much religious counseling would aim at celibacy rather than heterosexuality, and thus would not fall within the definition of the California law, even apart from any special exception for religious counseling.

AF said...

Professor Dorf: I think there's something else going on here, which is a tacit admission that psychology and behavioral sciences are soft sciences whose "findings" are prone to ideological bias. The most obvious example of this is the fact that two generations ago, homosexuality was considered to be a psychological illness with an equal degree of consensus that "repairing" homosexuality is now considered to be a threat to public health.

I have no doubt that the current consensus is closer to the truth than the old one. I have no illusions, however, that psychology has gone from being a biased, value-laden pseudo-discipline to a value-neutral hard science in that time. There is no question that the California law reflects changes in social values as well as, if not more than, an advance in medical knowledge. So even if you are correct that a presumption of liberty shouldn't apply to regulation of medical treatment -- a premise I question -- there is reason to question that this law would fit squarely within that exception.

To its credit, it seems like the legislature recognized that there are liberty interests involved and struck a balance.

Hashim said...

I don't think your conventional answer is quite as straightforward as you think.

First, laws banning misleading advertising are regulating commercial speech -- i.e., speech that proposes a commercial transaction. But here, the speech being regulated is not proposing a commercial transaction, but is itself the "transaction." To make that point more concrete: surely California cannot ban a mental-health professional from selling a book that advocates and describes his reparation-therapy methods; so why can California ban the professional from saying the same exact thing for money in a one-on-one setting rather than in a mass-produced book? The nature of the service isn't any different, just the medium in which it is communicated.

Second, my point about the 1A rights of non-"professionals" wasn't limited to religious groups. For example, can CA ban the Boy Scouts from espousing the ideas contained in reparative therapy? I would think not. So the State's hook appears to be the "professional" status of mental-health providers, which seems to me like a weak justification for banning speech because the State disagrees with it.

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