by Peter Sprigg
September 19, 2019
It’s not often that a legislative body moves to repeal a law that it enacted less than two years earlier—especially when it passed by a vote of 43-2.
Nevertheless, this week Corey Johnson, speaker of the New York City Council (who openly self-identifies as gay) announced that he will move to repeal a city-wide ban on sexual orientation change efforts (SOCE), which critics of the practice call “conversion therapy.” My colleague Cathy Ruse has also written about this development at The Stream.
The law was enacted in late 2017 and just took effect last year.
Why the about-face? Unfortunately, it’s not because of a new-found respect for the rights of people with unwanted same-sex attractions to seek the help they desire.
Instead, they fear that the U.S. Supreme Court will strike the law down as unconstitutional.
In January 2019, an Orthodox Jewish therapist, Dr. David Schwartz, filed a lawsuit challenging the new law. He is being represented by the Alliance Defending Freedom.
As ADF points out in their complaint, “The Counseling Censorship Law is unprecedented. It is the first in the nation to censor speech between counselors and adult patients.” The 18 states, and other localities, that have already restricted SOCE have only prohibited the practice with minors—on the theory that they are more vulnerable to coercion and less able to give informed consent.
A bill similar to the New York City law, AB 2943, was considered in California last year, but was withdrawn by its sponsor at the last minute. California instead recently adopted a non-binding resolution, ACR 99, condemning SOCE.
Previously, therapy bans for minors in California and New Jersey had been upheld in federal circuit court decisions. Additional lawsuits are pending in Maryland and Florida.
What was different about New York City? For one thing, its scope. Not only did it ban therapy for adults (not just minors), but it also barred any such assistance “offered or provided to consumers for a fee,” regardless of whether the individual is a licensed mental health provider. Rather than facing a professional sanction such as the loss of a license, violators could be fined up to $10,000.
Although the Supreme Court has not yet heard a challenge to therapy bans, it has not been silent about them. In the 2018 case of NIFLA v. Becerra, the court struck down a California law that essentially required pro-life pregnancy centers to advertise for abortions, ruling the law violated the centers’ First Amendment free speech rights. California had defended the law (as they defended their therapy ban for minors in a case called Pickup v. Brown) by arguing that certain kinds of “professional speech” do not have the same First Amendment protections. Justice Thomas rejected that view in his majority opinion in the NIFLA case:
Some Courts of Appeals have recognized “professional speech” as a separate category of speech that is subject to different rules. See, e.g., … Pickup v. Brown, 740 F. 3d 1208, 1227–1229 (CA9 2014) … . These courts define “professionals” as individuals who provide personalized services to clients and who are subject to “a generally applicable licensing and regulatory regime.” … Pickup, supra, at 1230. “Professional speech” is then defined as any speech by these individuals that is based on “[their] expert knowledge and judgment,” or that is “within the confines of [the] professional relationship,” Pickup, supra, at 1228. So defined, these courts except professional speech from the rule that content-based regulations of speech are subject to strict scrutiny. See … Pickup, supra, at 1053– 1056 … .
But this Court has not recognized “professional speech” as a separate category of speech. Speech is not unprotected merely because it is uttered by “professionals.” This Court has “been reluctant to mark off new categories of speech for diminished constitutional protection.” And it has been especially reluctant to “exemp[t] a category of speech from the normal prohibition on content-based restrictions.” This Court’s precedents do not permit governments to impose content-based restrictions on speech without “‘persuasive evidence … of a long (if heretofore unrecognized) tradition’” to that effect.
This Court’s precedents do not recognize such a tradition for a category called “professional speech.”
I wrote about the implications of this for therapy bans in a blog post in July 2018, “Will the Supreme Court Save Sexual Orientation Change Efforts?” It appears that some of the leaders of the LGBT movement may have come around to the same realization.
This is yet another illustration of the fact that elections—and judicial nominations—have consequences.