J. Paul Devlin’s A Passing Phase is a light-hearted coming-of-age story about a serious topic: societal and interpersonal bias against sexual and gender minorities. In this novel, seventeen-year-old Nate Whitby enters conversion therapy to “change” his attraction to men. He believes it’s a phase, thinking:
“Absolutely. That’s all it is. Wasn’t he simply a late-blooming hetero? Most definitely. It’ll kick in, maybe as late as college but it will kick in soon enough. It has to.”
With the “help” of his repressive mother, he turns to a therapist who is eager to “treat” him despite the fact that doing so is against the law in their state. Nate emerges from this damaging process with a better understanding of who he is, but in real life, not everyone is as lucky.
Conversion therapy, also known as reparative therapy or Sexual Orientation Change Efforts (SOCE), involves practices aimed at changing an individual’s sexuality, gender identity, or gender expression. In the past, this type of therapy included such aversion-based treatments as applying electric shocks when a patient was aroused by same-sex images. Today, it includes treatments to alter an individual’s “thought patterns by reframing desires, redirecting thoughts, or using hypnosis, with the goal of changing sexual arousal, behavior, and orientation.”
These practices continue to occur despite the fact that the American Psychological Association removed homosexuality as a pathology from the Diagnostic and Statistical Manual of Mental Disorders (DSM) more than 40 years ago. There is also a strong professional consensus that this treatment does not alter sexual orientation or gender identity and that it presents a serious risk of harm to those undergoing it.
As Ryan Kendall testified before a California State Assembly Committee:
At the age of 16, I had lost everything. My family and my faith had rejected me, and the damaging messages of conversion therapy, coupled with this rejection, drove me to the brink of suicide. For the next decade I struggled with depression, periods of homelessness, and drug abuse.
Recognizing the risk of harm to LGBTQ youth, the U.S. Substance Abuse and Mental Health Services Administration has called for the elimination of conversion therapy in Ending Conversion Therapy: Supporting and Affirming LGBTQ Youth (October 2015). The Administration noted that there are many ways to end this practice, including through the passage of legislation.
Conversion therapy on minors is now illegal in a handful of states, including California, and the District of Columbia. Do laws preventing therapists from performing conversion therapy violate the First Amendment of the U.S. Constitution?
Appellate courts have said no, ultimately upholding these laws as constitutional regulations of professional conduct. In Pickup v. Brown, the 9th Circuit analyzed California’s law prohibiting mental health professionals from performing SOCE with patients under the age of 18. The Court determined that the law prohibited conduct, but not expressive speech, and was related to a legitimate state interest in “protecting the physical and psychological well-being of minors.” 740 F.3d 1208, 1231 (9th Cir. 2014) (quoting 2012 Cal. Legis. Serv. ch. 835, 1(n)). Meanwhile, the 3rd Circuit analyzed New Jersey’s law banning SOCE counseling of minors and concluded that it was a “permissible prohibition of professional speech” because the state has an “‘unquestionably substantial’ interest in protecting citizens from harmful professional practices,” an interest that becomes stronger when it relates to minors. John Doe v. Governor of the State of New Jersey, 783 F. 3d 150, 153 (quoting King v. Governor of the State of New Jersey, 767 F. 3d 216 (3d Cir. 2014)).
In my opinion, the protection of LGBTQ youth from harmful and discredited professional practices is not just a legitimate or substantial state interest, but a compelling one. Conversion therapy should only happen in fiction, if anywhere at all.