California targets conversion therapy to protect LGBTQ youth

from Kristen HuangCalMatters

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California lawmakers are developing a new strategy to discourage efforts to change a person’s sexual orientation or gender identity after the US Supreme Court struck down a Colorado law banning the practice. The strategy: Extending the statute of limitations for medical malpractice claims.

A bill introduced by Senator Scott WienerDemocrat from San Francisco, would extend the amount of time someone can file a mental health malpractice lawsuit for trying to change their sexual orientation or gender and harming them in the process. Depending on the age of the person filing the claim, the bill would increase the statute of limitations from three years to 22 years, or within five years of discovery of the injury.

“You cannot change someone who is LGBTQ to not be LGBTQ. All major medical associations agree that sexual orientation and gender identity are immutable characteristics and that so-called conversion therapy is a fraud that harms patients,” Wiener said during a recent Senate Judiciary Committee hearing.

Wiener likened the change to a similar move by the Legislature to extend the statute of limitations for victims of child sexual abuse.

The committee voted 10 to 2 Tuesday to advance the legislation along party lines.

Major medical and mental health organizations condemn conversion therapywhich is rooted in the now-debunked theory that homosexuality is a mental illness. Studies have linked it to increased depression and suicidality — and there is no credible evidence to show that it works.

California was the first state to ban the practice on children in 2012, and many states have followed suit. But last month, the Supreme Court sent a case challenging Colorado’s ban on conversion therapy on First Amendment grounds back to lower courts. At 8 to 1 opinionthe justices sided with Kaylee Chiles, a Christian therapist who argued that the law violated her free speech rights because it allowed her to “affirm” a client’s sexual orientation, but prevented her from talking about changing her orientation to clients who have that goal.

The opinion did not directly rule on the constitutionality of Colorado’s conversion therapy ban, but Justice Neil Gorsuch hinted in the majority opinion that Colorado’s ban would fail the “strict scrutiny” test required by laws that regulate speech.

“What this decision basically says is that it doesn’t matter that states have an interest in regulating the quality of care for their patients. Her right to express herself does not stop when she walks into her office and practices her profession that is licensed by the state,” said Elana Redfield, an attorney and director of federal policy at UCLA’s Williams Institute, which studies LGBTQ legal issues.

Allow more time for malpractice claims

The decision threatens California’s law, as well as dozens of similar laws in other states, but Shannon Minter, legal director of the National Center for LGBTQ Rights, said the court’s decision gives him some hope. Since almost all medical organizations have abandoned conversion therapy, attempting it would still be considered abuse even if state bans were no longer in effect.

“After digesting the opinion for some time and reading it carefully, it looks like there’s a very clear path forward, and at the end of the day, paradoxically, we’re going to be in a much stronger legal position with respect to these protections,” Minter said.

In the majority opinion, Justice Gorsuch distinguished abuse laws from prohibitions, saying they allow “breathing room for protected speech.”

In California, a patient can sue a medical care provider for damages if they believe they were harmed by the provider’s negligent conduct. These types of cases require expert witnesses to testify about the accepted standard of care and also place the burden of proof on the patient.

The remaining hurdle, Minter said, is time. Many LGBTQ people do not realize the harm until years later, well past the existing statute of limitations. Wiener’s proposal would solve that problem and help deter state-licensed therapists from getting into the practice in the first place, he said.

“One of the unique ways that conversion therapy harms young people in particular is that it encourages them to blame themselves for the failure of therapy,” Minter said. “Almost (every time) by the time someone comes to us or another attorney realizing it’s not their fault, it’s too late. It happens to us time and time again.”

Christian groups, parents oppose

Opponents of the measure say it’s a clear attempt to circumvent a Supreme Court ruling that would likely prevent states like California from imposing bans on conversion therapy.

“If they can’t ban counseling, they’re going to bankrupt the counselors who do it,” said Greg Burt, vice president of the California Family Council, a Fresno-based Christian advocacy group.

Burt argued that the Supreme Court was clear in holding that a therapist’s speech during a client’s session is constitutionally protected and that Wiener’s measure, if passed, would face the same legal challenges because it would still effectively suppress speech.

Burt acknowledged that counseling is “pointless” if the client disagrees with the goals of therapy, but said some Christians may experience same-sex attraction or gender dysphoria but still want to live out their faith.

“I hope that people can choose their own goals in counseling and that will protect everyone. Why should the government be involved in what goals we have for our lives in terms of sexuality and gender identity,” Burt said.

The bill also opposes California Baptists for Biblical Values ​​and other groups that have in the past opposed the state’s efforts to strengthen protections for transgender youth.

Decision calls into question ‘talk therapy’

Julia Sadusky, a licensed psychologist in Colorado, co-authored the amicus brief in Chiles v. Salazar asking the Supreme Court to uphold the ban – and describes herself as a theologically orthodox Catholic.

For years she counseled children from religious families who wanted to align their identity with their faith; the ban, she said, never interfered with her work. She and another Christian psychologist developed a clinical method to help religious LGBTQ youth explore their identities without coercive practices.

The key difference in her practice, Sadusky said, is that she never promises a predetermined outcome. Clients choose how to live their lives – some pursue same-sex relationships, some don’t, some transition, some don’t.

“The focus is on how to resolve value conflicts that arise for me when I have conflicts between different aspects of my identity, not how to change my identity as such,” Sadusky said.

She now worries that the Supreme Court’s decision will “undermine the reliability of the therapy” as a clinical practice.

“The most troubling part for me was the framing of talk therapy as just protected free speech, given that talk therapy involves treatment modalities or should, not just telling a person what you believe about their life or what you recommend,” she said.

Some legal scholars agree. Redfield of UCLA’s Williams Institute said the court’s decision could have a broad impact on the medical field.

“All patients should be concerned because this undermines our ability to trust doctors. And it puts the burden on consumers to file a lawsuit,” Redfield said.

Supported by the California Health Care Foundation (CHCF), which works to ensure that people have access to the care they need, when they need it, at a cost they can afford. Visit www.chcf.org to learn more.

This article was originally published on CalMatters and is republished under Creative Commons Attribution-NonCommercial-No Derivatives license.