By: Khatia Mikadze
I. Yes, Conversion Therapy is Still Happening!
You might have heard from a friend, a family member, or even in the news, that someone went through a gay conversion therapy. So-called “Conversion Therapy,” sometimes referred to as “sexual orientation change efforts” or “reparative therapy” is a range of practices that seek to change an individual’s sexual orientation or gender identity. Such practices are based on a faulty promise that being lesbian, gay, bi-sexual, transgender, or queer (LGBTQ) is a mental illness that requires intervention, therapy, or a medical procedure. Historically, medical professionals used extreme medical procedures such as electric shock therapy, claiming it could convert gay people into straight. Fast forward many years to today, this myth has been debunked and rejected by every major medical and mental health organization because there is no reliable and credible evidence that conversion therapy works in changing a person’s sexual orientation or gender identity. Numerous studies have actually shown that administering such therapies poses dangerous health risks for LGBTQ+ youth because the practices often lead to depression, decreased self-esteem, substance abuse, homelessness, and even suicides.
Despite overwhelming scientific evidence, conversion therapy is still happening today. In 2018, national organizations representing millions of licensed medical and mental health care professionals, educators, and child welfare advocates declared their support for legislative protections against conversion therapy. A 2018 Williams Institute report estimates that approximately 20,000 LGBTQ+ minors in states without protections will be subjected to conversion therapy by a licensed health care professional before the age of eighteen. The report found the startling number of approximately 698,000 LGBTQ+ adults in the United States who were subjected to the practice at some point in their lives, half of whom were adolescents at the time.
Various states have already enacted laws or regulations to protect minors from being subjected to conversion therapy by state-licensed mental health providers. A growing number of municipalities have also enacted similar protections, including at least sixty cities and counties in Arizona, Florida, Georgia, Michigan, Missouri, New York, Ohio, Pennsylvania, Washington, and Wisconsin. North Carolina has an executive order restricting the use of public funds for conversion therapy. These enacted laws and statutes explicitly prohibit psychotherapies that “provide acceptance, support, and understanding of clients or the facilitation of clients’ coping, social support, and identity exploration and development, including sexual orientation-neutral interventions to prevent or address unlawful conduct or unsafe sexual practices” assuming such therapies “do not seek to change sexual orientation.” However, in the states that have not enacted the state wide laws, the LGBTQ+ youth are still at a very high risk of being exposed to conversion therapy because their families can simply travel or drive to the town where the conversion therapy is not banned and still receive the services.
II. Challenging Conversion Therapy in Courts
While it is widely recognized that conversion therapy imposes significant physical and psychological harm on minors, courts have not issued a clear legal guidance on halting the practice. Unsurprisingly, conversion therapy triggers various legal concerns such as its constitutionality, consumer fraud issues, professional ethics, and the parents’ constitutional rights to care for and control their children’s upbringing. It also raises important policy concerns for LGBTQ+ advocates about the need for legislation to better protect LGBTQ+ minors.
To date, conversion therapy has been challenged in courts a handful of times. While the courts have consistently held that the laws banning conversion therapy do not violate the Constitution, the circuits are split on the level of judicial scrutiny they have applied to the issue. The Supreme Court has refused to take the chance on four different occasions, leaving in place current decisions from the circuit courts uphdoling the anti-conversion therapy laws as constitutional. First in 2015, the Supreme Court rejected constitutional challenges to New Jersey’s 2013 law banning conversion therapy on minors. In 2016, the Supreme Court rejected a challenge to the same law. The Court also denied a challenge to the Third Circuit U.S. Court of Appeals’ 2014 decision, upholding the anti-conversion therapy law as constitutional. Finally, in April 2019, the Court rejected for the third time a challenge to the New Jersey law. The challenge was brought by the anti-LGBTQ group Liberty Counsel, which has been designated as a hate group by the Southern Poverty Law Center. It is aslo important to note that the challenges to the California and New Jersey laws were brought in federal courts by both individual counselors and the National Association for Research and Therapy of Homosexuality (NARTH), an organization founded in 1992 based on a disapproval of homosexuality and a belief that it is a psychological trait that can and should be changed. However, dozens of psychological groups filed amicus briefs supporting the constitutionality of the statutes.
The California and New Jersey statutes include in their findings that the state “has a compelling interest in protecting the physical and psychological well-being of minors, including lesbian, gay, bisexual, and transgender youth, and in protecting its minors against exposure to serious harms caused by sexual orientation change efforts.” Further, the statutes do not impose any criminal charges, but rather, the conduct is defined as an “unprofessional conduct” with a reference to an appropriate governing licensing body,ethics board, or commission.
But the question everyone should be asking here is: is conversion therapy be a speech or a conduct? Could psychoanalytic sessions be considered “speech” as defined under the First Amendment or a “treatment” which could be considered “conduct?” This is exactly the source of legal ambiguity between different circuits which have applied different levels of scrutiny, which in itself could be a dangerous legal posture to bring it in front of the Supreme Court.
A. Faulty First Amendment Arguments
The most common underlying legal argument against the anti-conversion therapy laws are based on the First Amendment of the constituion. For instance, indivudual counselors in both California and New Jersey cases argued that anti-conversion therapy statutes regulate their freedom of speech based on its viewpoint and its content.
The Free Speech Clause of the First Amendment prohibits the government from “abridging the freedom of speech,” but the definition of that freedom has been left open to interpretation. The Supreme Court’s long established precedent instructs that the Clause protects against government regulation of certain “protected”speech (including some forms of expressive conduct) while giving the government greater leeway to regulate “unprotected” speech. Regulations of protected speech generally receive strict or intermediate scrutiny, which are the strongest forms of judicial review of the government’s conduct. Government regulations subjected to strict scrutiny rarely survive a constitutional challenge because under this standard the government must have a compelling governmental interest in regulating the speech and such regulation must be narrowly tailored to accomplish its goals. In contrast, the courts apply the lowest form of review, rational basis review, to the government’s actions that regulate unprotected speech. As a threshold question, courts consider whether a law is directed at speech or conduct, and, if the latter, whether that conduct is inherently expressive. A court may also ask whether a law imposes a valid time, place, or manner of restriction, or impermissibly regulates speech on the basis of its content or the speaker’s viewpoint.
The content-based restrictions that apply to particular speech because of the topic discussed or the idea or message expressed are also subject to strict scrutiny. However, the Supreme Court has recognized limited categories of speech that the government may regulate because of their content (including obscenity, defamation, fraud, incitement, fighting words, true threats, speech integral to criminal conduct, and child pornography.).
- Ninth Circuit: “Conduct”
This was exactly the case in the California statute which was challenged in a federal court in 2014. The Ninth Circuit in Pickup v. Brown, concluded that the statute regulated conduct, even though there was an incidental effect on speech. As the Court stated, the statute “regulates only treatment, while leaving mental health providers free to discuss and recommend, or recommend against” conversion therapy. The court applied the lowest possible judicial review standard of rational basis review and held that the statute successfully passed the constitutional muster because the legislature had a legitimate interest in protecting minors. The Court reasoned that to hold otherwise would mean that “talk therapy” would be entitled to “special First Amendment protection” and make it “virtually immune from regulation.” Thus, the decision allowed a licensed mental health professional to tell a patient seeking conversion therapy to consult a non-licensed provider, such as a minister, but could not perform the therapy themselves.
- Third Circuit: “Professional Speech”
Conversely, the Third Circuit took a different approach. It declined to distinguish between the categories of “conduct” and “speech” in King v. Christie when examining New Jersey’s anti-conversion therapy statute and instead the unanimous three judge appellate panel came up with a notion of “professional speech” as speech that occurs pursuant to the practice of a licensed profession. The Court also emphasized that “commercial speech” and “professional speech” are not the same but they are similar in that they are analyzed under the same scrutiny standard, which is intermediate scrutiny. The intermediate scrutiny requires that the statute “directly advances” the government’s interest in protecting clients from ineffective and/or harmful professional services, and is “not more extensive than necessary to serve that interest.”
The court held that the New Jersey statute passed the intermediate scrutiny because of the legislature’s intent to protect minors. Thus, the court noted that professionals who practice conversion therapy could certainly advocate for it and can “express this viewpoint, in the form of their personal opinion, to anyone they please, including their minor clients.” However, the court ignored that there could be a fine line between this expression of viewpoint and professional practice.
- Second Circuit: Pending
New York City (NYC) banned conversion therapy on minors in 2019. However, the law was immediately challenged in Schwartz v. City of New York by the Alliance Defending Freedom, (ADF) a conservative Christian organization with a reputation of bringing challenges to the Supreme Court, alleging that the ban infringes upon freedom of speech and religion. ADF filed a federal lawsuit, targeting the city’s ordinance prohibiting people from charging others for conversion therapy, which includes any technique meant to change a person’s sexual orientation or gender identity. The Alliance based its claim on First Amendment protections for free speech. In response, New York City Councilman Cory Johnson, who himself is opengly gay, introduced a bill into City Council to actually repeal the ban, telling Washington Post that “the courts have changed considerably over the last few years, and we cannot count on them to rule in favor of much-needed protections for the LGBTQ community.” It is no surprise that the courts have become increasingly conservative under the Trump administration, including the U.S. Court of Appeals for the Second Circuit, which includes New York. President Trump has already successfully appointed several judges to the Second Circuit.
B. Parents’ Constitutional Rights Argument
In addition to the First Amendment arguments, another important legal issue that anti-conversion therapy statutes trigger is parents’ constitutional rights to the care, custody, and control over their children under well-established substantive due process. The Supreme Court has acknowledged that parents have certain constitutional rights when it comes to the care, custody and control of their children. For instance, in Meyer v. Nebraska, the Court held that a statute forbidding the teaching of the German language impermissibly encroached on the liberty of the parents. The Court reasoned that the parent’s liberty interest is consistent with “the right to marry, establish a home, and bring up children” guaranteed under the Due Process Clause of the Fourteenth Amendment. Similarly, in Pierce v. Soc’y of Sisters, the Court struck down an Oregon statute preventing children from selecting private or public schools for their children. The Court analyzed it under the strict scrutiny standard and held that the governmental purpose lacked a reasonable relation to any purpose within the interests of the state.
In fact, the California challenge also included parents as plaintiffs who argued that the statute infringed on their substantive due process rights. Such rights are well ingrained in case law, allowing parents to make the most important decisions such as medical decisions for their minor children. However, this is a dangerous argument because parents do not have unlimited rights over the treatment of their children. For instance, the government routinely regulates treatments, licenses professionals, establishes ethics standards, and approves drugs. The Ninth Circuit acknowledged this danger by stating that “it would be odd if parents had a substantive due process right to choose specific treatments for their children — treatments that reasonably have been deemed harmful by the state — but not for themselves.”
III. Controversy: Fearing the Supreme Court
While the decisions from Ninth and Third Circuits imposed important limitations on conversion therapy, it is still unclear what the best approach is to legally challenge harmful conversion therapy on minors. For instance, the Ninth Circuit did not specifically define whether the conversion therapy can be characterized as “speech” or as a “conduct” under the First Amendment. On the other hand, the Third Circuit crafted a completely new notion of “professional speech” but distinguished it from “commercial speech.” While courts have struggled with what box the conversion therapy treatment fits in, they have uniformally aknowledged that forcing treatment on minors causes severe physical and psychological harm and the government is justified in preventing such actions. However, these decisions from the courts still leave the unlicensed providers (spiritual leaders for instance) and other medical professionals in the states and cities where conversion therapy is not banned to practice it.
Not only is the legal ambiguity about standards of scrutiny an issue, but advocates are also facing pressures from many conservative groups who are ready to challenge anti-conversion laws in federal courts, hoping to ultimately elevate the issue to the Supreme Court. Many advocates recognize that such legal challenges can be detrimental to the movement and to the vulnerable group of minors these laws were initially designed to protect. As the Washignton Post identified, Born Perfect, a legal campaign whose mission it to end conversion therapy, has advocated for the first time to repeal the anti-conversion laws to protect its strategy of pushing for local and state jurisdictions. Due to this lack of clear guidance from courts and the Supreme Court, the LGBTQ+ advocates have resorted to other legal venues that could potentially avoid the controversy over whether conversion therapy is speech under the First Amendment, or the parents’ constitutional rights mandate allows parents to force their children to go through this harmful practice. Such legal venues include tort actions that could be brought against the providers by the adults who were once treated by them as minors. Other legal venues are consumer protection laws, but they are often deemed to be ambiguous in that they are not perfect to defend the rights of minors. Other legislations are being introduced in the House and Senate to implement protections to avoid the First Amendment challenges. For instance, the Therapeutic Fraud Prevention Act would officially classify the provision and advertising of conversion therapy in exchange for monetary compensation as fraudulent practices. Additionally, the Federal Trade Commission (FTC) exists to “protect consumers by preventing [. . .] deceptive and unfair business practices.” While the FTC already has the authority to prohibit this form of consumer fraud, the Act would expressly direct the FTC to protect consumers from these harmful and unaccredited practices. After all, Conversion Therapy providers engage in misleading and deceptive practices based on the faulty belief that one’s sexual orientation or gender identity can be changed.
While it is likely that conservative groups will bring more legal challenges to the laws banning conversion therapy, it is also likely that the Supreme Ccourt will finally decide to take the issue and clairfy the legal ambiguity over conversion therapy. However, legal advocates must be careful in choosing the best approach for challenging the constituionality of conversion therapy in order to avoid a legal precedent like the “Masterpiece Cakeshop” case.
 See ERIN BLAKEMORE, Gay Conversion Therapy’s Disturbing 19th-Century Origins, HISTORY.COM (June 28, 2019), available at: https://www.history.com/news/gay-conversion-therapy-origins-19th-century (documenting history behind the origins and evolution of the conversion therapy).
 See generally The Lies and Dangers of Efforts to Change Sexul Orientation or Gender Identity, HUMAN RIGHTS CAMPAIGN (last visited Apr. 24, 2020), available at: https://www.hrc.org/resources/the-lies-and-dangers-of-reparative-therapy (stating that Psychiatrist Dr. L. Spitzer, who once offered a flawed study on reparative therapy, has since denounced the study and has apologized for endorsing the practice.)
 See U.S. SUBSTANCE ABUSE & MENTAL HEALTH SERVICES ADMIN., Ending Conversion Therapy: Supporting and Affirming LGBTQ Youth (2015), at 13; available at:https://store.samhsa.gov/product/Ending-Conversion-Therapy-Supporting-and-Affirming-LGBTQ-Youth/SMA15-4928 (stating that “interventions aimed at fixed outcome, such as gender conformity or heterosexual orientation, including those aimed at changing gender identity, gender expression, and sexual orientation are coercive, can be harmful, and should not be part of behavioral health treatment)
 See STEPHEN PETERS, Mental Health, Child Welfare & Education Orgs Back Legislative Efforts to Protect LGBTQ Youth, HUMAN RIGHTS CAMPAIGN, Apr. 17, 2018, available at: https://www.hrc.org/blog/mental-health-child-welfare-education-orgs-back-legislative-efforts-to-prot
 CHRISTY MALLORY, et al., Conversion Therapy and LGBTQ Youth, The Williams Inst., UCLA SCHOOL OF L. (2018), at 1, available at: https://williamsinstitute.law.ucla.edu/wp-content/uploads/Conversion-Therapy-Jan-2018.pdf
 Id. (stating that over 350,000 LGBTQ adults were subjected to conversion therapy).
 See generally Conversion “Therapy” Laws, MOVEMENT ADVANCEMENT PROJECT (last visited Apr. 25, 2020), available at: https://www.lgbtmap.org/equality-maps/conversion_therapy (listing the states, cities and municipalities that have enacted the conversion therapy bans in the U.S.).
 Compare Wollschlaeger v. Governor of Fla. (Wollschlaeger III), 797 F.3d 859 (11th Cir. 2015) (applying intermediate scrutiny); and Stuart v. Camnitz (Stuart II), 774 F.3d 238 (4th Cir. 2014), cert. denied, 135 S. Ct. 2838 (2015)(applying intermediate scrutiny); and King v. Governor of N.J., 767 F.3d 216 (3d. Cir. 2014) (applying intermediate scrutiny), cert. denied, 135 S. Ct. 2048 (2015); with Pickup v. Brown, 740 F.3d 1208 (9th Cir. 2013), cert. Denied, with 134 S. Ct. 2871 (2015) (applying rational basis review); and Moore-King v. County of Chester-field, 708 F.3d 560 (4th Cir. 2013) (applying an unclear level of scrutiny).
 XAVIER PERSAD, SCOTUS Rejects Challenge to New Jersey’s Anti-Conversion Therapy Law for Third Time, HUMAN RIGHTS CAMPAIGN, Apr. 17, 2019, avaiilable at: https://www.hrc.org/blog/scotus-rejects-challenge-to-new-jerseys-anti-conversion-therapy-law-for-thi
 Id; see generally Liberty Counsel, SOUTHERN POVERTY L. CENTER (last visited Apr. 25, 2020), available at: https://www.splcenter.org/fighting-hate/extremist-files/group/liberty-counsel
 RUTHANN ROBSON, JD, The Constitutionality of Legal Prohibitions of Sexual Conversion Therapy, AM. PSYCH. L. SOC’Y, 2014, available: https://www.apadivisions.org/division-41/publications/newsletters/news/2014/10/legal-update
 See N.J. STAT. § 45:1-55 (2013); see also Sexual Orientation Change Efforts, S.B. 1172, 2012 CAL. STAT. ch. 835.
 See King v. Governor of N.J., 767 F.3d 216 (3d. Cir. 2014), cert. denied, 135 S. Ct. 2048 (2015); see also Pickup v. Brown, 740 F.3d 1208 (9th Cir. 2013), cert. Denied, with 134 S. Ct. 2871 (2015).
 U.S. CONST. AMEND. I.
 See The First Amendment: Categories of Speech, CONGRESSIONAL RESEARCH SERVICE, Jan. 16, 2019, available at: https://fas.org/sgp/crs/misc/IF11072.pdf (discussing free speech jurisprudence from the Supreme Court).
 Id; e.g., Hill v. Colorado, 530 U.S. 703 (2000); Reed v. Town of Gilbert, 135 S. Ct. 2218 (2015).
 Reed, 135 S. Ct. at 2226-27.
 See R.A.V. v. St. Paul, 505 U.S. 377, 382-86 (1992); see also Brown v. Entm’t Merchs. Ass’n, 564 U.S. 786 (2011); United States v. Stevens, 559 U.S. 460 (2010) (considering to add more categories such as violent entertainment or depictions of animal cruelty).
 740 F.3d 1208 (9th Cir. 2013), cert. Denied, with 134 S. Ct. 2871 (2015).
 Id. at 1231.
 King v. Governor of N.J., 767 F.3d 216 (3d. Cir. 2014).
 Id; see generally Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n of N.Y., 447 U.S. 557, 65 L. Ed. 2d 341, 100 S. Ct. 2343 (1980) (holding that the government may regulate commercial speech that concerns unlawful activity or is misleading); Board of Trustees of State Univ. of N.Y. v. Fox, 492 U.S. 469, 477, 106 L. Ed. 2d 388, 109 S. Ct. 3028 (1989) (holding that commercial speech is not absolute because it enjoys only limited measure of protection).
 King, 767 F.3d 216, 224 (3d. Cir. 2014).
 NY. EDUC. LAW & § 6531-a (McKinney 2019); see generally MICHAEL GOLD, New York Passes a Ban on ‘Conversion Therapy’ After Years-Long Efforts, NY TIMES, Jan. 21, 2019, available at: https://www.nytimes.com/2019/01/21/nyregion/conversion-therapy-ban.html;
 MARISA LATI, Why The N.Y. City Council Made The ‘painful’ Decision To Repeal Its Ban On Conversion Therapy, THE WASHINGTON POST (Sep. 13, 2019 at 7:47 p.m. EDT), available at: https://www.washingtonpost.com/religion/2019/09/13/why-nycs-council-made-painful-decision-repeal-its-ban-conversion-therapy/
 See RUSSELL WHEELER, Judicial Appointments in Trump’s First Three Years: Myths and Realities, THE BROOKINGS INST. (Jan. 28, 2020), available at: https://www.brookings.edu/blog/fixgov/2020/01/28/judicial-appointments-in-trumps-first-three-years-myths-and-realities/ (stating that “Republican appointees were a majority of the active-status judges on four appellate courts—those of the 5th, 6th, 7th, and 8thcircuits. Trump has flipped three others—the 2d, 3rd, and 11th. As to the conservatives’ bete noir—the 9th circuit’s court of appeals—the Democratic-appointee majority has gone from 18-7 (with four vacancies) to a thin 16-13.”).
 Meyer v. Nebraska 262 U.S. 390 (1923).
 Pierce v. Soc’y of Sisters 268 U.S. 510 (1925).
 Pickup v. Brown, 740 F.3d 1208 (9th Cir. 2013), cert. Denied, with 134 S. Ct. 2871 (2015).
 See Pierce, 268 U.S. at 510; Meyer, 262 U.S. at 390.
 See Prince v. Massachusetts, 321 U.S. 158 (1944) (holding that state regulation may restrict parental control in the public interest and to protect children from harm).
 Pickup, 740 F.3d at 1225.
 See id.; King, 767 F.3d 216, (3d. Cir. 2014).
 See supra note 42.
 THERAPEUTIC FRAUD PREVENTION ACT OF 2019, H.R. 3570, 116th Cong. § 3 (2020).
 ERWIN CHEMERISNKY, Not a Masterpiece: The Supreme Court’s Decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission, 43 ABA HUMAN RIGHTS MAGAZINE 4 (last visited Apr. 25, 2020), available: https://www.americanbar.org/groups/crsj/publications/human_rights_magazine_home/the-ongoing-challenge-to-define-free-speech/not-a-masterpiece/ (discussing harmful effects of the decision on the precedent and on LGBTQ rights).