Courts at odds over Calif. law to ban sexual-orientation change therapy

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SAN FRANCISCO -- A California law prohibiting mental health providers from attempting to change the sexual orientation of patients under 18 years of age was upheld by a federal judge a day after another judge temporarily blocked the measure for three therapists in a separate case.

U.S. District Judge Kimberly Mueller in Sacramento, ruling Tuesday in a lawsuit brought by therapists and minors who support the law, said it doesn't preclude providers from recommending or discussing "sexual orientation change efforts," or SOCE, therapy with patients, and that the treatment itself isn't speech protected under the First Amendment.

"The court finds there is no fundamental or privacy right to choose a specific mental health treatment the state has deemed harmful to minors," Judge Mueller said in her written ruling. "Parents can still seek SOCE or its equivalent through religious institutions or other unlicensed providers."

Under the law, any attempt by a mental health provider to subject a patient under 18 to SOCE will be considered "unprofessional conduct," and will be disciplined by the licensing authorities. California Gov. Jerry Brown signed the law Sept. 30, and it is scheduled to take effect Jan. 1.

On Monday, U.S. District Judge William B. Shubb in Sacramento ruled that a family therapist, psychiatrist and aspiring therapist who sued to block the law are "likely to succeed" on their claims that it violates constitutionally protected free-speech rights. Judge Shubb's ruling bars the state from enforcing the measure against those three people until their lawsuit is resolved.

Both lawsuits include claims that the law illegally thwarts therapists' efforts to eliminate "unwanted same-sex sexual attractions," according to the filings. The plaintiffs said in their complaints that the law violates free speech, freedom of religion and other rights guaranteed by the U.S. Constitution.

Judge Shubb wrote in his ruling that the "limited scope" of his preliminary injunction was warranted and weighted in favor of the public's interest, given the possible free-speech violations the law may impose. He ruled that the law cannot be enforced against the therapists who filed the case pending "final resolution" of it.

"The public has an interest in the protection and mental well-being of minors, and the court does not take lightly the possible harm sexual orientation change efforts may cause minors, especially when forced on minors who did not choose to undergo" such counseling, Judge Shubb wrote.

Matt Staver, an attorney for Liberty Counsel representing the plaintiffs affected by Tuesday's ruling, said he will immediately appeal the decision, which will cause "significant and irreparable harm" to counselors, parents and minors seeking the therapy.

The patients "have not and do not want to act on their same-sex attraction, and they are greatly benefiting from this counseling," Mr. Staver said in a recording on Liberty Counsel's website responding to the ruling. The decision would require therapists to present only one viewpoint of same-sex attractions, which is a violation of free-speech rights, he said.

Lynda Gledhill, spokeswoman for California Attorney General Kamala Harris, said the law will take effect Jan. 1 except for the three therapists in the case before Judge Shubb. Regarding Tuesday's ruling, Ms. Harris said in an e-mail: "It's more a form of punishment than a bona fide therapy. My office will continue to protect California minors by vigorously defending this law."

The case before Judge Shubb was filed Oct. 1 by Donald Welch, a family therapist and member of the Skyline Church in San Diego.

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