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   a) "Reparative" therapy begins from the outdated premise that homosexuality and bisexuality are diseases or otherwise inferior ways of being.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.