California is now the first state to outlaw “conversion therapy” — treatments intended to “cure” homosexuality — when practiced on minors. (You can read the bill here). The future of the bill is up in the air, since several right-wing groups are saying they will sue to have the law overturned.
Over on Ethics Alarms, Jack is, well, alarmed. I tried to post a response to his post, but my post isn’t showing up – probably it’s just waiting for approval, or there’s been a technical glitch. But I’m impatient, so I’m going to post my response here.
Jack said that the law was wrong because it goes against free speech, because it interferes with parental autonomy, and because it restricts experimentation and free thought. My response follows.
None of your three points stands up well to scrutiny.
1. Free speech. That it involves “talk” doesn’t automatically means its protected by the first amendment. If I talk Linus into believing that I’m the owner of the Brooklyn Bridge and sell it to him on a verbal deal, I can be arrested as a con artist, even though I did nothing but talk.
Therapists offering conversion therapy are, first of all, con artists – they’re bilking desperate parents out of money by offering something that they cannot deliver. That’s not protected speech.
More importantly, courts have found time and again that the state’s compelling interest in protecting children from harm can survive a first amendment challenge. As Justice White wrote:
It is evident beyond the need for elaboration that a state’s interest in “safeguarding the physical and psychological well being of a minor” is “compelling.” … Accordingly, we have sustained legislation aimed at protecting the physical and emotional well-being of youth even when the laws have operated in the sensitive area of constitutionally protected rights….
Ferber v New York involved sexual performances, but given the overwhelming evidence that conversion therapy severely harms children, the same principle applies here. The First Amendment is not a license for child abuse.
2. Disrespect for autonomy of parents.
But this law doesn’t restrict parental behavior, only therapist behavior.
It does makes a particular commercial service (conversion therapy) unavailable, but no more than a law forbidding prostitution interferes with a father who wants to buy his son a sex act for his 16th birthday, or a law forbidding drug use interferes with parents who’d like to buy their daughter a joint. Do you object to those laws because they abridge parental autonomy?
There are already laws in California holding parents accountable for making clearly harmful medical decisions for their children, as in the case of a Christian Scientist who allows his child to go untreated rather than get medical treatment. This law is much milder, since it only applies to therapists and cannot punish parents in any way.
More generally, there are a lot of laws against parents injuring their children, either actively or through neglect – laws against child abuse, laws requiring children to be educated, etc.. There are times when protecting the health of children is more important than protecting the right of parents to treat children in whatever way they want.
3. Restricts experimentation and free thought.
So do all imaginable rules and regulations on therapeutic, psychiatric and medical treatment. Should we therefore say that no regulation is acceptable?
Suppose a hynotherapist claims that sexually molesting his patients while they are in a trance is an experimental treatment that he believes will benefit his patients — is that a reason for us to repeal California’s law against sexual misconduct by licensed therapists? After all, to use the same logic as your argument, who are the Legislature to say that a good rape while hypnotized isn’t exactly what the patient needs?
The answer is pretty clear, of course. The legislature are the people’s duly elected representatives, and as such they are the authorized people who pass laws regulating the providers of health care. Of course, they should carry out that duty based on the best scientific evidence, and acting only in cases where the scientific literature shows severe harms for a treatment not counterbalanced by proven benefits.
In this case, the law they passed cited the extensive scientific literature showing not only that conversion therapy has no benefits (and does not work), but that it carries a high risk of severely harming the patient. Furthermore, the group they are protecting – children – are a particularly powerless group unable to protect themselves.
Under these circumstances, this law is entirely appropriate, and we should hope that the other 49 states quickly follow suit.
Finally, you falsely claim that this law dictates thought. That’s obviously not true. In no way does this law outlaw anyone thinking anything. Parents are free not only to think that their children shouldn’t be gay, but to share this opinion with their children, with their friends, and anyone else.
I guess you could argue that outlawing a therapeutic practice that has been shown to be ineffective and harmful is dictating thought. But if that’s the case, then surely ANY regulation of ANY therapeutic practice is dictating thought. Is that your view?
P.S. If gay activists were “all-powerful,” same-sex marriage would be legal everywhere, and 99% of Republicans would be unelectable. Alas, this is not the case. Not even in California.
P.P.S. Oh, and a follow-up point on autonomy.
It increases autonomy when decisions about optional medical treatment are put off until adulthood. If my parents choose a treatment for me, that takes away my autonomy; if the decision is put off until I’m an adult able to decide for myself, then that increases my autonomy.
It’s not entirely simple, of course. In making these decisions, parents have to weigh other factors — for instance, are there benefits to beginning treatment earlier than age 18, that won’t be available after age 18? There are cases where there are strong reasons to begin treatment before age 18.
But in the case of conversion therapy – which has no proven benefits, has never been shown to work, and can cause lifelong harm – all factors point in the same direction. There is no benefit to early treatment, and there is every reason to wait for adulthood, to let the patient decide for themself.
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