California's novel solution to the Supreme Court's rejection of LGBTQ conversion therapy bans, which could be replicated elsewhere, is a law that would allow for greater civil damages through malpractice lawsuits for those pursuing the discredited practice.
Senate Bill 934, which was introduced by state Senator Scott Wiener in January, would extend the statute of limitations for seeking damages from conversion therapy to 22 years for those who received the therapy under age 18. The law brings such damages in line with those seeking civil damages from childhood sexual assault, and could serve as a serious deterrant to anyone seeking to practice conversion therapy on LGBTQ+ youths in California.
Wiener was anticipating the conservative Supreme Court's decision that came down last week that essentially questions the constitionality of banning this type of therapy, given that a person's opinions and beliefs around gender and sexuality are protected as free speech — setting aside that this is a rejected medical practice than can do actual harm to children and teens.
The California law would also allow for a 10-year window for malpractice suits for those who suffer from psychological injury or illness after undergoing conversion therapy over the age of 18.
Shannon Minter, legal director of the SF-based National Center for LGBTQ Rights, tells the Chronicle today that he's optimistic that, despite the Supreme Court broadly protecting conversion therapy on First Amendment grounds, laws like SB934 will serve as stronger protection for LGTBQ+ youth.
"The net effect of this decision will be to strengthen legal protections for young people who are harmed by conversion therapy," Minter confidently surmises, speaking to the Chronicle."
Minter adds, "What we see over and over again from survivors of conversion therapy is it often takes them many years to understand that the problem was not that they personally failed, it was that this therapy was harmful and does not work. [SB934] could in some ways be a more effective deterrent."
As Wiener puts it to the Chronicle, "It’s quackery, it’s torture and it should be banned. And if we can’t ban it, we should at least give people the tools to seek compensation from the people who inflicted this harm on them."
The Supreme Court did not rule on the merits of the Colorado law banning conversion therapy, but in an 8-1 decision — which, ironically, arrived on Transgender Day of Visibility — the justices tossed the case back to a lower court for stricter scrutiny, essentially dooming Colorado's law. In concurring with the majority, liberal Justice Elena Kagan wrote that the Colorado law was not "viewpoint-neutral," and therefore it comes in conflict with the First Amendment.
Writing the majority opinion, Justice Neil Gorsuch wrote, "The Constitution does not protect the right of some to speak freely; it protects the right of all. It safeguards not only popular ideas; it secures, even and especially, the right to voice dissenting views." Gorsuch goes on to argue that the logic in favor of the Colorado law would have led to the upholding of laws that banned therapists from endorsing the view that homosexuality was normal and healthy in the mid-20th Century, when the medical orthodoxy held that homosexuality was a disorder.
The lone dissenting vote was Justice Ketanji Brown Jackson, who argued in a 33-page dissent that conversion therapy was not simply speech but a form of flawed health care.
"We are on a slippery slope now: For the first time, the Supreme Court has interpreted the First Amendment to bless a risk of therapeutic harm to children by limiting the State’s ability to regulate medical providers who treat patients with speech," Jackson wrote.
Gorsuch left open, in the majority opinion, the ability of states to enforce their own medical malpractice laws, and the specific findings of harm that those typically require. He and the majority ruled only that counselors and therapists could not be fined or have their licenses threatened for expressing their own beliefs.
As it stands, California's ban on LGBTQ conversion therapy, enacted in 2012, is still on the books and would require a legal process — likely taking years — to be struck down. The Colorado law, similarly, has not yet been struck down.
Photo by Tong Su
