PhillyGayLawyer in Legal Intelligencer: Pa. Rep. Proposes Ban on State Gay-Conversion Therapies

By | November 13, 2013

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State Rep. Brian Sims, D-Philadelphia, announced his intention to introduce legislation this term that would effectively ban all gay-reparative or conversion therapies in the state of Pennsylvania. Collectively, such therapies are known as sexual orientation change efforts (SOCE). The Protection of Minors From Sexual Orientation Change Counseling Act, or SB 872, sponsored by Sims and Rep. Gerald Mullery, D-Luzerne, states, “A mental health professional shall not engage in sexual orientation change efforts with an individual under 18 years of age.” If passed, this legislation could end the litany of medical, psychological and spiritual mistreatments that have done irreparable damage to generations of LGBT youth in Pennsylvania.

SOCEs have come into the national spotlight recently, as a plethora of scientific evidence proves what LGBT advocates have been saying for years—that being gay is not a choice. Subjecting minors already dealing with the often difficult process of coming out to SOCEs causes or strengthens extreme negative feelings and numerous other emotional collateral damages. The bill cites the conclusions of a 2009 task force analyzing SOCEs that concluded they cause critical health risks to LGBT individuals, including shame, confusion, depression, self-hatred, guilt and hopelessness. This can lead to social withdrawal, suicidality, substance abuse, hostility and blame toward parents, loss of faith, feelings of anger and betrayal, loss of friends, problems in sexual and emotional intimacy, high-risk sexual behaviors, and feelings of being dehumanized.

In addition to the severe emotional toll faced by these minors, lack of oversight or regulation of these extreme methods is disturbing. New Jersey State Assemblyman Tim Eustace, D-Bergen, sponsor of New Jersey’s similar bill, A-3371, referred to SOCEs as an “insidious form of child abuse.” Electroshock, compulsory masturbation using straight pornography, social shaming, physical abuse and attempts to associate negative entities with gay responses are just some of the SOCEs that minors have had to endure.

To date, there is no conclusive evidence to even suggest that such therapies have a beneficial outcome. The American Medical Association, American Psychological Association and American Academy of Pediatrics have unanimously condemned SOCEs as unethical, harmful and without basis in scientific or medical evidence. The bill goes on to cite a World Health Organization regional office’s statement that concluded that SOCEs violate the ethical principles of health care and basic human rights. If successfully enacted, SB 872 would make Pennsylvania the third state in the country to ban SOCEs, joining California and New Jersey; Gov. Jerry Brown signed California SB 1172 on Sept. 30, 2012, into law and Gov. Chris Christie signed New Jersey A-3371 into law Aug. 19. Ohio, Massachusetts and Washington, D.C., are considering similar bans on SOCEs.

Christie, a Republican, surprised supporters of the bill when he signed it at the last possible moment, putting A-3371 into effect. Resistance to the passing of A-3371 was spurred by Christie’s administration. Lawyers for the Liberty Counsel sent Christie a letter before he signed A-3371, threatening to sue if he chose to support the ban on SOCEs, saying that it violated myriad constitutional liberties and was based on inconclusive findings about the effects of SOCE on minors.

The Liberty Counsel, a Christian conservative organization, made its initial challenge against SOCE bans by attacking SB 1172 in California; the group invoked freedom of speech and parental choice arguments in its effort to strike these laws down. The court granted the plaintiff’s motion to temporarily enjoin SB 1172 on the assumption that strict scrutiny would be applied—as it is in First Amendment free-speech cases—and that the law would subsequently fail to meet this standard.

However, on appeal, the U.S. Court of Appeals for the Ninth Circuit concluded that only rational basis was necessary for review of SB 1172, and that SB 1172 is rationally related to the legitimate government interest of protecting the wellbeing of minors. Free speech might deserve heightened scrutiny, the court reasoned, but the conduct of mental health professionals was considered well within the regulatory authority of the state; it was irrelevant that psychotherapists happen to conduct their therapy through speech. As to parental rights, the court reasoned, parents still have the right to speak to their children and advise them on religious, moral and fundamentalist approaches in the parental capacity. Subjecting their progeny to SOCE treatment, however, would fall within the protective police power of the state.

Symbolically, SB 872 stands to initiate a statewide dialogue on the rights of LGBT individuals, as the bill opens with the following language: “Being lesbian, gay or bisexual is not a disease, disorder, illness, deficiency or shortcoming. The major professional associations of mental health practitioners and researchers in the United States have recognized this fact for nearly 40 years.” Such language is monumental in a state like Pennsylvania.

Pennsylvania obstinately refuses to recognize same-sex marriage and is the last state in the region to do so. New York, Vermont, New Hampshire, Massachusetts, Maine, Connecticut, Rhode Island, Delaware, Washington, D.C., Maryland and longtime holdout New Jersey (starting Oct. 21 by court order) have legalized either same-sex marriage or civil unions, since Massachusetts first legalized it in 2003.

Even without marriage equality, LGBT individuals are not even guaranteed equal protection of the law in Pennsylvania. No state law exists in Pennsylvania to stop an employer from firing, harassing or shaming employees for their sexual orientation. No law exists to keep a landlord from evicting someone for his or her sexual orientation. No law exists to keep organizations from discriminating based on sexual orientation (e.g., the American Red Cross refuses to accept blood donations from gay men as a policy). And no law exists to punish hate crimes based on sexual orientation or gender. This is the message that current Pennsylvania law sends to LGBT minors: You are on your own.

When SB 872 passes, Pennsylvania will change that message and will finally provide crucial legal protection to young adults from the detrimental effects of SOCE. Sims summed up this issue perfectly: “It’s time to protect Pennsylvania children from this quackery that can inflict years of harm for those who manage to survive it.” SB 872 provides that “Pennsylvania has a compelling interest in protecting the physical and psychological wellbeing of minors, including lesbian, gay, bisexual and transgender youth, and in protecting its minors against exposure to serious harms caused by sexual orientation change efforts” and that the ban on SOCE is directly related to the regulation of mental health professionals. In conclusion, I am optimistic that the anticipated challenges to SB 872 law will fail in light of the decisions elsewhere in the country using a rational basis level of scrutiny and Pennsylvania will emerge with one of hopefully many laws to come that serve to protect the LGBT community.

Read more: http://www.law.com/jsp/pa/PubArticlePA.jsp?id=1202627526863&slreturn=20131013101700#ixzz2kXVIAReF

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