May 19, 2017
By Eric Neiman*
On May 10, Connecticut joined seven other states and the District of Columbia by enacting a law banning conversion therapy for minors. The legislation passed the House by a 142-5 vote, passed the Senate unanimously, and was signed into law by Governor Malloy the same day as the Senate vote.
One week later, on May 17, Nevada became the ninth state to adopt a conversion therapy ban. The bill had passed the Senate by a 15-5 vote and passed the Assembly by a 31-8 vote before being signed into law by Governor Sandoval.
Conversion therapy (also known as reparative therapy or sexual orientation change efforts) is a controversial practice intended to change the sexual orientation or gender identity of children through therapy or counseling. The Connecticut law, HB 6695, defines conversion therapy as “any practice or treatment administered to a person under eighteen years of age that seeks to change the person’s sexual orientation or gender identity, including, but not limited to, any effort to change gender expression or to eliminate or reduce sexual or romantic attraction or feelings toward persons of the same gender.” Section 2 of the law states that “No health care provider shall engage in conversion therapy.” The law provides that practice of conversion therapy is unprofessional conduct for licensed health care professionals and grounds for disciplinary action, and also constitutes an unfair or deceptive trade practice.
The Nevada law, SB201, includes a similar definition of conversion therapy, and prohibits various licensed professionals from providing conversion therapy, “regardless of the willingness of the person or his or her parent or legal guardian to authorize such treatment.” Violation of the law is a ground for discipline by a state licensing board.
Proponents of conversion therapy argue that legislative bans interfere with the rights of parents to make health care decisions for their children, infringe on religious freedom, violate free speech protections, and invade privacy rights. However, legislative bans have survived court challenges. For example, the California law, SB 1172 (Business and Professions Code 865, 865.1 and 865.2), has been upheld twice by the Ninth Circuit. Pickup v. Brown, 740 F.3d 1208 (2014); Welch v. Brown, 834 F.3d 104 (2016). On May 1, the U.S. Supreme Court denied a petition for writ of certiorari in the Welch case.
Various medical, scientific, and human rights organizations oppose conversion therapy as lacking scientific validity, ineffective, and potentially harmful to children. In 1993, the American Academy of Pediatrics stated that therapy “directed at specifically changing sexual orientation is contraindicated.” An American Psychological Association task force concluded in 2009 that there was “insufficient evidence to support the use of psychological interventions to change sexual orientation.” In 2012, the American Academy of Child and Adolescent Psychiatry wrote that clinicians “should be aware that there is no evidence that sexual orientation can be altered through therapy, and that attempts to do so may be harmful.”
Conversion therapy previously was banned by the states of California, Illinois, New Jersey, New Mexico, New York, Oregon, and Vermont as well as the District of Columbia. Legislative bans have been proposed in at least 14 other states in 2017. A number of cities around the country also have adopted bans.
On April 24, Senators Patty Murray (D-WA) and Corey Booker (D-NJ) reintroduced the Therapeutic Fraud Prevention Act of 2016 (S.2880), a bill that would ban conversion therapy nationally.
*We would like to thank Eric J. Neiman (Lewis Brisbois Bisgaard & Smith LLP, Portland, OR) and Mary Holloway Richard (Phillips Murrah PC, Oklahoma City, OK) for respectively authoring and reviewing this email alert.