California may not impose a ban on the controversial “gay conversion therapy” set to take effect January 1, the 9th U.S. Circuit Court of Appeals said in a one-page order issued just before Christmas.
The order Dec. 21 overturns denial of a preliminary injunction issued by U.S. District Judge Kimberly Mueller in Sacramento on December 4. Her order conflicts with imposition of a narrow injunction by U.S. District Judge William Shubb issued one day earlier.
The Circuit’s order rejected Mueller’s position and expanded Shubb’s order. Shubb had limited his order to three plaintiffs. The 9th Circuit did not make that distinction.
The California Legislature approved SB1172 in 2011, which prohibits California-licensed psychiatrists, psychologists and counselors from using therapies considered “reparative” methods on clients under the age of 18, in an attempt to change sexual orientation, behavior or gender expression.
Those who violate the law would face discipline by the state for unprofessional conduct.
In the Mueller case, Pickup v. Brown, therapists, parents and minors argued that SB1172 violates the First and Fourteenth Amendments.
She wrote, “The court concludes that SB1172 is ‘rationally related to a legitimate state interest.’” And she went on to say the stated purpose is to protect the physical and psychological well-being of minors. “This is more than a ‘legitimate’ interest: it is a significant, if not compelling, interest according to Supreme Court precedent.”
In contrast, Shubb said in his December 3 order in Welch v. Brown, C12-2484WBS, “the public has an interest in the protection and mental well-being of minors, and the court does not take lightly the possible harm SOCE [sexual orientation change efforts] may cause minors, especially when forced on minors who did not choose to undergo SOCE.”
But, he concluded, “Countered against this is the public’s interest in preserving First Amendment rights. Given the limited scope and duration of a preliminary injunction in this case, the court has no difficulty in concluding that protecting an individual’s First Amendment rights outweighs the public’s interest in rushing to enforce an unprecedented law,” he said.
The Pickup lawsuit, subject of the 9th Circuit order, sought the injunction.
It argues the state ban violates free speech and interferes with private decisions between therapist and client and interferes with patients’ privacy rights, with parental child-rearing and is legally too “vague” to make clear what is forbidden.
The appeals order was signed by Judges Alfred Goodwin, Edward Leavy and Milan Smith. Both sides will file briefs seeking a full hearing on the injunction.
Case: Pickup v. Brown, No. 12-17681