JURIST Guest Columnist Mary Ziegler of the Saint Louis University School of Law says that the US Supreme Court’s decisions in reproductive rights cases may complicate efforts to bring constitutional challenges against California’s recent legislation banning the use of sexual orientation therapy on minors…

JURIST recently reported on a law passed by the California State Legislature prohibiting the use of sexual orientation change or conversion therapies on minors. Sexual “conversion” or “reparative” therapy is designed to change the sexual orientation or gender identity of the patient. Its supporters include religious organizations and the National Association for Research and Therapy of Homosexuality (NARTH). After the American Psychiatric Association (APA) issued guidelines cautioning ethical practitioners against performing conversion therapy, the California legislature began crafting the first law prohibiting the therapy, described by the statute as “sexual orientation change efforts.” The law prohibits any psychologists or mental-health care providers from encouraging attempts “to change behaviors or gender expressions, or to eliminate or reduce sexual or romantic feelings” for persons of the same sex.

Two things struck me about the California law. The first involves the law’s relevance to transgender individuals. Noticeably, the legislature’s findings asserted only that homosexuality and bisexuality were not diseases. The legislation made no such statement about gender identity or gender expression. Although regulating efforts to change “gender expressions,” the legislature described these attempts as a form of sexual-orientation therapy, conflating gender identity/expression and sexual orientation and leaving open the issue of whether transgender individuals suffer from a disorder in a way that gay, lesbian or bisexual people do not.

This omission may well reflect the ambivalence that some progressives feel about describing gender identity (or gender identity disorder) as an illness. M.T. v. J.T., one of the few cases to recognize that an individual can legally change her sex, relied on a medical framing of gender identity, explaining the importance of relief for those “suffering from the condition of transsexualism.” Changing one’s sex becomes, in this account, the necessary treatment of a disease. At the same time, LGBQT activists argue that transgender identity is not pathological or inferior to any other form of gender identity or gender expression. The statute highlights this tension, and it makes clear that even sympathetic legislators do not yet always have the vocabulary or understanding to address gender identity issues. The law frames all conversion therapies as involving sexual orientation. This paradigm obscures important differences between sexual orientation and gender identity that the courts may well have to flesh out.

I was also struck by the response given to the law by the right-wing Pacific Justice Institute. The Institute suggested that it would argue that the law violated First Amendment rights to free speech and Fourteenth Amendment rights to privacy. I couldn’t help noticing what the Foundation did not say — that the law violated parents’ Fourteenth Amendment rights to custody and control of their children. In a series of cases involving the unwillingness of Jehovah’s Witnesses to allow their children to receive blood transfusions, the courts have balanced parents’ religious liberties and rights to custody and control of their children against the best interest of the child.

It is not clear how the courts will strike this balance in conversion-therapy cases. The US Supreme Court’s parental-rights cases, such as Troxel v. Granville, primarily address custody and visitation. Lower court decisions offer little additional clarity, since they most often involve situations in which a child faces a risk of death or serious bodily harm. If the sexual-orientation-change statute is challenged, the courts will have to decide how, why, and to what extent “conversion” therapies harm children. The Supreme Court may also have to elaborate on the parental right (or liberty interest) spelled out in Troxel. How far does this right go, especially when a child’s own sense of identity is at stake?

That the Foundation did not rely on a parental/religious rights claim was surprising. It was more than a little ironic that the Foundation did rely on physicians’ rights to speech and privacy, since the grassroots right, and the anti-abortion movement in particular, has effectively gutted both in the Supreme Court. In Planned Parenthood v. Casey, in the context of an informed-consent regulation, abortion opponents argued, and the Supreme Court held, that physicians giving medical advice were not speaking at all. Instead, they were practicing medicine, and the State had a good deal of latitude in regulating medical care.

Secondly, in the years leading up to Casey, abortion opponents argued that physicians had no privacy rights in the abortion decision — whether that right involved the freedom to practice medicine as one saw fit or privacy in the doctor-patient relationship. At most, the argument went, physicians had standing to assert rights that belonged to someone else. This argument effectively justified regulations that could be framed as affecting only physicians more than women, including laws banning particular abortion procedures or requiring physicians to describe an ultrasound. In the conversion-therapy context, arguments about medical speech and privacy probably won’t work precisely because the grassroots Right has undermined them so thoroughly.

Interpreted broadly, Casey leaves significant room for the state to regulate quasi-medical aspects of the culture wars. In the case of the California statute, Casey also makes clear that the courts may have a broad new role in adjudicating the truthfulness of all medical speech — not just statements made during abortion care.

The idea of courts deciding the truth of statements suggesting that homosexuality is a medical illness makes me uneasy. I am not sure that courts are competent to determine the truthfulness of supposedly scientific conclusions, especially when those conclusions address hot-button social issues. I am even less certain that courts should focus on truthfulness. The issue of “conversion” therapy raises important questions about the scope of parental rights, the reach of the Free Exercise Clause, and the meaning of equal citizenship under the Fourteenth Amendment. Hopefully, courts will take on these issues directly rather than expanding sadly inadequate truthful-and-non-misleading standard from Casey.

“Conversion” therapy is part of an ever-larger medical front in the wider culture wars. In the abortion wars, the right has reaped substantial benefits from medicalizing a variety of constitutional, moral and social issues. I expect that the California law will show that both the left and right can play this game. What Casey has given social conservatives in one context, Casey may well, in other contexts, take away.

Mary Ziegler is an Assistant Professor of Law at Saint Louis University School of Law. Her publications include articles on the same-sex marriage debate, reproductive rights and the history of the American eugenic legal reform movement. Prior to her position at Saint Louis University, she served as the Oscar M. Ruebhausen Fellow in Law at Yale Law School, and as a clerk for Justice John Dooley of the Vermont Supreme Court.

Suggested citation: Mary Ziegler, California Legislature Underscores Need for Better Gender Identity Standards, JURIST – Forum, Sept. 18, 2012, http://jurist.org/forum/2012/09/mary-ziegler-gender-standards.php.