Legal showdown over gay conversion therapy waged in 2 states
■ At issue is whether states can ban the therapy on minors and whether counselors who conduct the therapy can be held liable for consumer fraud.
By Alicia Gallegos — Posted Jan. 21, 2013
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The patient’s anguish was clearly visible to psychiatrist Jack Drescher, MD, as the man spoke about his experience undergoing so-called gay conversion therapy.
Such therapy often is rooted in the claim that poor parenting is the cause of same-sex attractions, and that patients can change if they truly wish to be heterosexual. Methods of “repairing” patients can include instructing them to beat effigies of their mothers, touch themselves while naked in front of counselors and be subjected to mock locker room scenarios in which therapists scream anti-gay epithets at them.
After attending a religious-based therapy six times a week and experiencing no change in his sexuality, the patient was left feeling ashamed, depressed and suicidal, Dr. Drescher said.
“I felt sad[ness] and also anger, because sometimes a therapist would say things that were very hurtful to the patient,” said Dr. Drescher, an author and medical expert on gay conversion therapy. He also is president of the Group for the Advancement of Psychiatry, a think tank that analyzes issues in the field of psychiatry. “It’s distressing when you see professionals, regardless if they are well-meaning or otherwise, deliver intentional or inadvertent harm to a patient.”
Physicians and health professionals across the country have reported treating patients for the problems they have after conversion therapy. In recent years, physician organizations including the American Medical Association have developed policy opposing the use of “reparative” or “conversion” therapy that the AMA describes as “based upon the assumption that homosexuality per se is a mental disorder or … that the patient should change his/her homosexual orientation.” The potential serious risks of reparative therapy include depression, anxiety and self-destructive behavior, said an American Psychiatric Assn. position statement.
The divisive practice now is the subject of multiple lawsuits: two in California over a ban on the therapy for minors and one lawsuit in New Jersey alleging consumer fraud.
Fighting back against therapy ban
In September 2012, California Gov. Jerry Brown signed into law a measure prohibiting mental health professionals from engaging in “sexual orientation change efforts” with patients younger than 18. The practice of such therapies should be considered unprofessional conduct and counselors subject to discipline by licensing entities, according to the law, which was set to go into effect Jan. 1.
But licensed counselors who practice the therapy and two families who say their teenagers benefited from it sued. The plaintiffs said the California law violates free speech and religious freedom rights. A federal judge denied an injunction against the measure, but a panel of the 9th U.S. Circuit Court of Appeals granted an emergency injunction Dec. 21, 2012, temporarily halting the law. At this article’s deadline, messages left with Brown’s office and the California attorney general had not been returned.
By enacting the law, the state is attempting to interfere with the counselor-client relationship and dictate what therapists can say regarding sexual orientation, said Mat Staver, founder and chair of Liberty Counsel, a conservative law firm that is representing the plaintiffs.
“This law is a significant intrusion on the freedom of speech of clients who have a right to receive counseling,” he said. “Under this law, the counselor or doctor would have to affirm the person’s behavior as natural, even if the client did not want it to be affirmed.”
In another case, a California psychiatrist, a licensed therapist and a former patient also sued over the law. In that action, a separate federal judge in December 2012 temporarily blocked the measure from being enforced against the three parties.
Psychiatrist Anthony Duk, MD, a plaintiff, said the law should be struck down because it prevents physicians and others from helping gay men repair their masculinity. Dr. Duk’s California practice includes young patients seeking help for their same-sex attractions.
“With this bill, what’s really at stake is the definition of masculinity as well as the entire basis of civilization,” he said. “When men don’t act like men, you have a breakdown of traditional family roles and weakening of the entire human race.”
Dr. Duk said he sees about three patients a year who he said need help fighting same-sex attractions. His treatment of such patients has not resulted in the desired outcomes, he said.
“I was not successful with the ones I had because they did not stay long enough,” he said. “The major factor is whether the patient really wants to heal. The ones who want to get better, those are the ones” able to change.
Does conversion therapy equal fraud?
In New Jersey, critics of gay reparative therapy are using a novel approach to hold therapists responsible for the alleged harm they cause. In a lawsuit, the Southern Poverty Law Center is accusing Jews Offering New Alternatives for Healing (JONAH) of consumer fraud for purporting to make gay patients straight.
The plaintiffs, four former therapy clients and two mothers of clients, say JONAH’s misrepresented services have caused the plaintiffs depression and other emotional harm. JONAH is an international organization that provides education and counseling for people and families aimed at changing same-sex attractions.
“We chose to file this lawsuit after coming into contact with these clients and learning about their troubling accounts of undergoing these ridiculous techniques and spending time and money based on deceptive lies,” said Sam Wolfe, a staff attorney with the Southern Poverty Law Center. Some of those techniques allegedly included sessions in which plaintiffs were instructed to disrobe and hold their genitalia, strike images of their mothers with a tennis racket and “cuddle” with others of the same sex, the lawsuit says.
JONAH has helped hundreds of people with unwanted same-sex attractions, and attempting to prevent this aid is dangerous, argued Charles LiMandri, president and chief counsel of Freedom of Conscience Defense Fund, a conservative law firm representing JONAH.
“People have different morals and values and different religious beliefs,” LiMandri said. “JONAH is not telling anyone they have to change, but if people say, ‘I want to change,’ they have a right.”
Suing gay conversion therapists under the state’s consumer fraud law is a new approach, but the underlying context is familiar to courts, said Prentiss Cox, an associate law professor at the University of Minnesota Law School and co-director of the school’s Law In Practice Program.
“To me, this case is an extension of the idea that you can’t sell people magnets and claim that they cure cancer,” he said. “The question is to what extent you treat this as a question of opinion or a question of science. If you treat it as an opinion, a court certainly could rule that the claim is not sustainable. If you treat it as a scientific conclusion that sexuality is not alterable — and particularly not through the methods employed by the defendant — I think the plaintiffs are likely to prevail.”
Experts: Research disputes therapy
Because many therapists who practice conversion are not licensed, the California ban probably will not have its intended effect, Dr. Drescher said.
“It’s a big hammer for a small nail in the sense that there aren’t a lot of licensed professionals doing this,” he said. “It’s not clear to me it will help the people who need to be helped.”
On the other hand, the Southern Poverty Law Center’s legal approach may “cast a wider net” over conversion therapists and potentially chill the practice, he said.
The American Psychiatric Assn. and the American Psychological Assn. have not officially weighed in on the cases, nor have the California and New Jersey medical societies.
Research by the American Psychological Assn., however, has been used against the therapy in the cases, said Clinton W. Anderson, PhD, associate director of the APA Lesbian, Gay, Bisexual and Transgender Concerns Office. An APA task force’s systematic study of peer-reviewed literature on sexual orientation change efforts concluded that such efforts are unlikely to be successful and involve risk of harm to the patient.
The research and professional viewpoints on gay conversion therapy point to overall agreement among health professionals on such therapy, Anderson said. “Today the consensus across a wide range of health and mental health providers is that such therapies are not effective and are not needed for people.”