SAN FRANCISCO A federal appeals court is wrangling over the legality of California's first-in-the-nation bid to ban "sexual-orientation change" counseling of children.
A three-judge panel of the 9th U.S. Circuit Court of Appeals on Wednesday closely questioned lawyers on both sides of the issue. The judges asked whether licensed mental health professionals who offer such therapy are protected by free-speech rights, and whether they're offering medical treatment that can be regulated by the government.
Two lower courts have split on the issue.
The appeals court put the regulation on hold until it decides the case. The court will rule later on a law now under consideration in other states.
The ban, which was scheduled to take effect Jan. 1, was put on hold by the 9th Circuit pending resolution of the closely watched cases. It spurred similar legislation still being considered by lawmakers in New Jersey,
The law states that therapists and counselors who treat minors with methods designed to eliminate or reduce their same-sex attractions would be engaging in unprofessional conduct and subject to discipline by state licensing boards. The activities of pastors and lay counselors who are unlicensed but provide such therapy through church programs would not be covered.
The cases before the appeals court brought by professionals who practice sexual orientation change therapy, two families who say their teenage sons benefited from it and a national association of Christian mental health counselors argue that the ban infringes on their free speech, freedom of association and religious rights, and in the case of the counselors, jeopardizes their livelihoods.
"The state has determined that the only permissible message (is that) same-sex attractions, behavior or identity are to be accepted, supported and understood, thus suppressing all other viewpoints to the detriment of licensed professionals and their vulnerable minor clients," lawyers for the families, several practitioners and the professional group said.
"The viewpoint of counselors who in their professional judgment determine that same-sex attractions conflict with the religious and moral beliefs of clients and are not desired, is silenced by SB 1172. This raises a serious constitutional question."
Supporters, including the governor and Attorney General Kamala Harris, say the prohibition on "reparative" and "conversion" therapy is necessary to protect children from a coercive practice that can put them at increased risk of suicide and whose efficacy has been questioned or rejected by every major mental health professional association.
Harris has argued that the law "is based on a scientific and professional consensus reached decades ago that homosexuality is a normal expression of human sexuality and not a disease, condition, or disorder in need of a `cure."'
Reflecting the competing issues before the appeals court, the two Sacramento-based trial judges who handled the lawsuits in December reached differing conclusions on whether the ban violates the U.S. Constitution.
One refused to block the law after ruling that the plaintiffs were unlikely to prove the prohibition unfairly tramples on their civil rights and should therefore be overturned. The other said he found the First Amendment issues presented by the ban to be compelling and ordered the state to temporarily exempt the three people named in the case before him.
The panel hearing the cases Wednesday consists of Chief Judge Alex Kozinski, who was appointed by Ronald Reagan in 1985, Judge Susan Graber, a 1998 appointee of Bill Clinton's, and Judge Morgan Christen, a 2012 appointee of President Barack Obama. The judges do not have a deadline for issuing a decision.
In November, CBS San Francisco reported that Congresswoman Jackie Speier introduced a resolution calling on other states to follow California's lead in outlawing gay conversion therapy on minors.
"It should be prohibited because it's quack medicine. It's snake oil efforts that are in fact refuted by all the professional associations that provide mental health oversight," Speier said.