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Pickup v. Brown

United States District Court, E.D. California

December 4, 2012

DAVID H. PICKUP, et al., Plaintiffs,
v.
EDMUND G. BROWN, et al., Defendants

Page 1348

For David H. Pickup, Joseph Nicolosi, Robert Vazzo, American Association of Christian Counselors, a Virginia Non-Profit Association, Jack Doe 1, Parent of John Doe 1, Jane Doe 1, Parent of John Doe 1, John Doe 1, a minor, guardian ad litem, Jane Doe, guardian ad litem, Jack Doe, Jack Doe 2, Parent of John Doe 2, Jane Doe 2, Parent of John Doe 2, John Doe 2, a minor, guardian ad litem, Jack Doe, guardian ad litem, Jane Doe, Christopher H. Rosick, Plaintiffs: Mathew D. Staver, LEAD ATTORNEY, Liberty Counsel, Inc, Maitland, FL; Daniel J. Schmid, PHV, Rena M. Lindevaldsen, PHV, Stephen M Crampton, PHV, PRO HAC VICE, Liberty Counsel, Inc., Lynchburg, VA; Mary Elizabeth McAlister, Liberty Counsel, Lynchburg, VA.

For National Association for Research and Therapy of Homosexuality, a Utah Non-Profit Organization, Plaintiff: Mathew D. Staver, LEAD ATTORNEY, PRO HAC VICE, Liberty Counsel, Inc, Maitland, FL; Daniel J. Schmid, PHV, Rena M. Lindevaldsen, PHV, Stephen M Crampton, PHV, PRO HAC VICE, Liberty Counsel, Inc., Lynchburg, VA; Mary Elizabeth McAlister, Liberty Counsel, Lynchburg, VA.

For Edmund G. Brown, Governor, State of California, Anna M. Caballero, Secretary, State and Consumer Services Agency, Sharon Levine, President, Medical Board of California, Kim Madsen, Executive Officer, California Board of Behavior Sciences, Michael Erickson, President, California Board of Psychology, Defendants: Alexandra Robert Gordon, LEAD ATTORNEY, CA. Dept. of Justice, Office of the Attorney General, San Francisco, CA; Daniel J. Powell, Department of Justice, Attorney General's Office, San Francisco, CA; Paul Evan Stein, California Office of the Attorney General San Francisco, Department of Justice, San Francisco, CA.

For Donald Welch, Movant: Kevin Trent Snider, LEAD ATTORNEY, Pacific Justice Institute, Sacramento, CA.

For Equality California, Intervenor: David C Dinielli, LEAD ATTORNEY, Bram Marshall Alden, Lika Cynthia Miyake, Munger, Tolles and Olson LLP, Los Angeles, CA; Michelle Friedland, LEAD ATTORNEY, Munger Tolles and Olson LLP, San Francisco, CA; Christopher Francis Stoll, Shannon Price Minter, National Center for Lesbian Rights, San Francisco, CA.

Page 1349

ORDER

KIMBERLY J. MUELLER, UNITED STATES DISTRICT JUDGE.

Plaintiffs seek to enjoin Senate Bill (SB) 1172 from taking effect on January 1, 2013. The bill prohibits licensed mental health professionals in California from engaging in sexual orientation change efforts (" SOCE" ) with minors. Plaintiffs, who are therapists, parents and minors, contend SB 1172 violates their First and Fourteenth Amendment rights. Their motion came on for hearing on November 30, 2012. Plaintiffs were represented by Matt Staver in oral argument, and additionally in the courtroom by Daniel Schmid and Stephen Crampton. Defendants were represented by Deputy Attorney General Alexandra Gordon. Amicus Equality California was represented by David Dinielli and Michelle Friedland in oral argument, and also in the courtroom by Bram Alden, Christopher Stoll, Lika Miyake and Shannon Minter. After careful consideration of the arguments made in the briefs and at argument, and having reviewed the relevant legal authority, the court finds plaintiffs are not likely to prevail on the merits so as to prevail at this stage of the litigation. For the reasons explained below, plaintiffs' motion is DENIED.

I. PROCEDURAL HISTORY

Plaintiffs in this case are David Pickup, Christopher Rosik, Ph.D., Joseph Nicolosi, Ph.D., and Robert Vazzo, all licensed mental health professionals; the National Association for Research and Therapy of Homosexuality (NARTH); the American Association of Christian Counselors (AACC); Jack and Jane Doe 1, on behalf of minor John Doe 1; and Jack and Jane Doe 2, on behalf of minor John Doe 2. John Does 1 and 2 are patients of Dr. Nicolosi (Decl. of Jack Doe 1 ¶ 10, ECF [1]

Page 1350

28-5; Decl. of Jack Doe 2 ¶ ¶ 13-14, ECF 28-5). Plaintiffs name the following defendants: Governor Edmund G. Brown, Jr.; Anna Caballero, Secretary of the State and Consumer Services Agency of California; Kim Madsen, Executive Officer of the California Board of Behavioral Sciences; Michael Erickson, Ph.D., President of the California Board of Psychology; and Sharon Levine, President of the Medical Board of California.

Plaintiffs' complaint, filed on October 4, 2012, challenges SB 1172, which adds three provisions to California's Business and Professions Code. The new law provides that a mental health provider, as defined by the statute, shall not " engage in sexual orientation change efforts with a person under 18 years of age." Sexual orientation change efforts are defined as " any practices . . . that seek to change an individual's sexual orientation." Plaintiffs assert six constitutional claims, alleging SB 1172 violates: (1) the therapists' right to free speech and the minors' right to receive information under the First Amendment; (2) the therapists' right to liberty of speech and the minors' right to receive information under Article I § 2(a) of the California Constitution; (3) the parents' and minors' right to free exercise of religion; (4) the parents' and minors' right to free exercise and enjoyment of religion under Article I, § 4 of the California Constitution; (5) the Jack and Jane Does' parental rights under the First and Fourteenth Amendment; and (6) the Jack and Jane Does' parental rights under Article I, § 7 of the California Constitution. ( See generally ECF 1.)

On October 19, 2012, Equality California filed a motion to intervene as a party defendant. (ECF 24.) Plaintiffs have opposed the motion and Equality California has filed a reply. (ECF 56, 72.) The motion to intervene is resolved by separate order.

On October 23, 2012, plaintiffs filed the pending amended motion for a preliminary injunction. (ECF 29.) Defendants have opposed the motion and plaintiffs have filed a reply. (ECF 48, 60.)

On November 21, 2012, the court granted Equality California's request to file an amicus brief and to participate in oral argument on the motion for a preliminary injunction. (ECF 67.) Equality California filed its amicus brief on November 21, 2012. (ECF 70.)

II. BACKGROUND ON SOCE[2]

As passed by the Legislature, SB 1172 seeks to regulate therapy known as " sexual orientation change efforts," or SOCE (pronounced " sō sh" ). " The phrase sexual orientation change efforts (SOCE) encompasses a variety of methods, including techniques derived from psychoanalysis, behavioral therapy, and religious and spiritual counseling. These techniques share

Page 1351

the common goal of changing an individual's sexual orientation from homosexual to heterosexual." (ECF 52 ¶ 26 (emphasis in original).)

Modern SOCE traces its history to the mid-twentieth century, when homosexuality was considered a form of disease. [3] At that time, " many mental health professionals sought to 'cure' [homosexuality] using a variety of techniques, including psychotherapy, hormone treatments, aversive conditioning with nausea-inducing drugs, lobotomy, electroshock, and castration." Id. ¶ 27. Use of these practices has dropped significantly in light of the current position of many American psychological and psychiatric professionals that homosexuality is not a mental illness. Id. ¶ 28. " [M]ost practitioners [have] stopped attempting to change sexual orientation and some [have taken] strong public stands against such efforts." Id. Plaintiff NARTH's treatment guidelines recognize SOCE as " an increasingly controversial subject." (ECF 63-2 at 6.)

Despite the documented decline of use in therapeutic practice, " the visibility of SOCE has increased in the last decade." [4] (ECF 54-1 at 33.) The American Psychological Association (" APA" ) has observed that " most SOCE currently seem[s] directed to those holding conservative religious and political beliefs, and recent research on SOCE includes almost exclusively individuals who have strong religious beliefs." Id. Plaintiff NARTH agrees that deeply religious people account for the bulk of patients now seeking SOCE. (ECF 63-2 at 17.) (" Research indicates that the majority of people who present to clinicians with unwanted same-sex attractions are motivated in part by deeply held religious values." ).

Modern day SOCE can be categorized as either aversion or nonaversion treatments, with some practitioners utilizing techniques from both. Aversion treatments include practices " such as inducing nausea, vomiting, or paralysis; providing electric shocks; or having the individual snap an elastic band around the wrist upon arousal by same-sex erotic images or thoughts. Other examples of aversive behavioral treatments include covert sensitization, shame aversion, systematic desensitization, orgasmic recondition, and satiation therapy." (ECF 54-1 at 30.) Plaintiff NARTH recognizes the controversy aversion treatment presents within the psychological and medical fields, as well as the potential harms to patients presented by such therapies. See ECF 63-2 at 29. NARTH's own treatment guidelines recommend avoiding some aversion treatments. See id. (" . . . in light of current research and professional ethics, some interventions for unwanted same-sex attractions and behavior are not recommended. These include shock therapy and other aversive techniques, so-called reparenting therapies, and coercive forms of religious prayer." ).

Nonaversive SOCE treatments center on " chang[ing] gay men's and lesbians' thought patterns by reframing desires, redirecting thoughts, or using hypnosis, with the goal of changing sexual arousal, behavior,

Page 1352

and orientation." (ECF 54-1 at 30.) Such efforts often are accomplished by an accompanying " educational process of dating skills, assertiveness, and affection training with physical and social reinforcement to increase other-sex sexual behaviors." Id.

Plaintiff NARTH's practice guidelines articulate the goal of SOCE as " support[ing] the principle that individuals are capable of making their own choices in response to same-sex attractions and [to] promote autonomy and self-determination." ( Id. at 21.) NARTH advises clinicians to accomplish this goal by " (a) acknowledging a client's choice or desire to seek intervention for unwanted same-sex attractions and behavior; (b) exploring why these attractions and behaviors are distressing to the client...; (c) addressing the cultural and political pressures surrounding choice in response to same-sex attractions; (d) discussing the available range of professional therapies and resources...; (e) providing understandable information on outcome research related to change interventions...; and (f) obtaining informed consent for treatment." Id. (citations omitted).

III. SB 1172

A. The Statute Enacted by SB 1172

SB 1172 enacts the following new sections of the California Business and Professions Code:

865. For the purposes of this article, the following terms shall have the following meanings:
(a) " Mental health provider" means a physician and surgeon specializing in the practice of psychiatry, a psychologist, a psychological assistant, intern, or trainee, a licensed marriage and family therapist, a registered marriage and family therapist, intern, or trainee, a licensed educational psychologist, a credentialed school psychologist, a licensed clinical social worker, an associate clinical social worker, a licensed professional clinical counselor, a registered clinical counselor, intern, or trainee, or any other person designated as a mental health professional under California law or regulation.
(b) (1) " Sexual orientation change efforts" means any practices by mental health providers that seek to change an individual's sexual orientation. This includes efforts to change behaviors or gender expressions, or to eliminate or reduce sexual or romantic attractions or feelings toward individuals of the same sex.
(2) " Sexual orientation change efforts" does not include psychotherapies that: (A) 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; and (B) do not seek to change sexual orientation.
865.1. Under no circumstances shall a mental health provider engage in sexual orientation change efforts with a patient under 18 years of age.
865.2. Any sexual orientation change efforts attempted on a patient under 18 years of age by a mental health provider shall be considered unprofessional conduct and shall subject a mental health provider to discipline by the licensing entity for that mental health provider.

B. Legislative History

A California State Senator introduced SB 1172 on February 22, 2012, with the stated intention of protecting California lesbian, gay, bisexual and transgender individuals

Page 1353

from " sham therapies" that aim to change their sexual orientation. Senate Judiciary Committee, SB 1172, 2011-2012 Sess. 5 (Cal. 2012); Complete Bill History of SB 1172 (Official California Legislative Information maintained electronically by Legislative Counsel of California). Initially, the bill included provisions allowing former or current SOCE patients to sue a therapist engaging in SOCE and requiring therapists who provide SOCE to adult patients to obtain a patient's signature on an informed consent form. Senate Committee on Business, Professions and Economic Development, SB 1172, 2011-2012 Sess. 8-9 (Cal. 2012). Prior to final passage, the draft bill was changed to remove these two provisions, leaving the sections set forth above. Senate Rules Committee: Third Reading, SB 1172, 2011-2012 Sess. 1 (Cal. 2012). The full Senate passed a version of the bill on May 30, 2012, twenty-three votes to thirteen. Complete Bill History of SB 1172. SB 1172 was then referred to the Assembly, where it cleared committee to reach the floor. Id. After amending it several times, the Assembly passed the bill on August 28, 2012, fifty-two to twenty-two. Id. The Senate then adopted the Assembly amendments on August 30, on a vote of twenty-three to thirteen. Id. The Governor received the bill on September 10 and signed it into law on September 30, 2012. Cal. Stats. 2012, ch. 835, p. 91.

Amicus Equality California was a primary sponsor of SB 1172, along with several other organizations, including Lambda Legal, Gaylesta, Mental Health America of Northern California and National Center for Lesbian Rights. Senate Rules Committee : Unfinished Business, SB 1172, 2011-2012 Sess. 7-8 (Cal. 2012). Initially, the California Psychological Association, California Association for Licensed Professional Clinic Counselors, California Psychiatric Association and California Association of Marriage and Family Therapists opposed the bill, on grounds that a statutory ban on a type of therapy was unprecedented, particularly the complete ban on SOCE for minors, even those who freely consent to the treatment. Senate Committee on Business, Professions and Economic Development, SB 1172, 2011-2012 Sess. 9-10 (Cal. 2012). These organizations also expressed concern that the proposed definition of SOCE was too vague. Assembly Committee on Business, Professions and Consumer Protection, SB 1172, 2011-2012 Sess. 4 (Cal. 2012). Other organizations, including plaintiff NARTH, also opposed the bill. Senate Rules Committee : Unfinished Business, SB 1172, 2011-2012 Sess. 8 (Cal. 2012). The California Psychological Association and California Association of Marriage and Family Therapists eventually supported the bill. [5] Senate Rules of Committee: Unfinished Business, SB 1172, 2001-2012 Sess. 7 (Cal. 2012). At the time the bill was delivered to the Governor, it was opposed by the American College of Pediatricians, California Catholic Conference, Inc., Catholic Medical Association, Christian Medical and Dental Associations, Church State Council, Liberty Counsel Action, NARTH, Pacific Justice Institute and Parents and Friends of Ex-Gays and Gays. Id. The other professional organizations who had initially opposed the bill, listed above, had withdrawn their opposition. See id.

During committee hearings, the Legislature addressed a potential conflict with California Health & Safety Code § 124260, which allows minors who are twelve years

Page 1354

of age or older to consent to mental health treatments without parental approval. Senate Judiciary Committee, SB 1172, 2011-2012 Sess. 6-8 (Cal. 2012). The Legislature ultimately concluded that Section 124260 was meant to allow minors to access only helpful treatment and thus that SB 1172's goal of protecting minors from harmful treatment was not in conflict. Id.

In adopting SB 1172, the Legislature expressly relied on mental health professional organizations' research into the safety and efficacy of SOCE, and in particular the report of the 2009 Task Force of the American Psychological Association (APA) titled Appropriate Therapeutic Responses to Sexual Orientation. The Legislature also referenced the Ninth Circuit Court of Appeals' decision in Pitcherskaia v. INS, 118 F.3d 641 (9th Cir. 1997), holding that " sexual orientation treatment" of a Russian citizen including " sedative drugs and hyponosis" constituted mental and physical torture, although the Legislature did not suggest the treatment in Pitcherskaia was akin to current SOCE practices in California. Senate Rules Committee: Third Reading, SB 1172, 2011-2012 Sess. 6 (Cal. 2012). The Legislature briefly documented the history of treatment of homosexuality by mental health practitioners. Senate Rules Committee: Unfinished Business, SB 1172, 2011-2012 Sess. 4-5 (Cal. 2012). It noted the APA's removal of homosexuality from the Diagnostic and Statistical Manual of Mental Disorders (DSM) list of mental disorders in 1973, id. at 4; the further modification of the DSM in the mid-1980s to eliminate the definition of those " in conflict with" their sexual orientation as having a mental disorder, id. at 5; and the removal of the diagnosis of egodystonic [6] homosexuality from the DSM in 1987. Id. The Legislature also noted the World Health Organization's removal of homosexuality from its International Classification of Disorders-10 in 1992, and shift to use of the term egodystonic homosexuality. Id.

The Legislature also reviewed the work of contemporary SOCE practitioners, including plaintiff Nicolosi's psychotherapeutic techniques, Senate Rules Committee: Third Reading, SB 1172, 2011-2012 Sess. 6 (Cal. 2012), as well as NARTH's view that homosexuals can and should be allowed to change their sexual orientation through therapy, Assembly Committee on Business, Professions and Consumer Protection, SB 1172, 2011-2012 Sess. 3 (Cal. 2012).

The final version of SB 1172 sets forth the Legislature's findings, summarized here:

o The major mental health professional organizations have recognized homosexuality is " not a disease, disorder, illness, deficiency, or shortcoming" for nearly 40 years.

o The 2009 APA Task Force report " concluded that sexual orientation change efforts can pose critical health risks to lesbian, gay, and bisexual people," including among many other effects " confusion, depression, guilt, helplessness, hopelessness, shame, social withdrawal, suicidality, substance abuse, stress, disappointment, self-blame, decreased self-esteem and authenticity to others, . . ."

o The APA, in a 2009 resolution, advised persons to avoid SOCE.

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o The APA has resolved that SOCE does not have proven effectiveness and that practitioners should refrain from engaging in the treatment.

o The American School Counselor Association, American Academy of Pediatrics, American Medical Association Council on Scientific Affairs, National Association of Social Workers, American Counseling Association Governing Council, American Psychoanalytic Association and Pan American Health Organization of the World Health Organization all have issued statements opposing SOCE.

o In a 2012 article, the American Academy of Child and Adolescent Psychiatry advised clinicians " there is no evidence that sexual orientation can be altered through therapy, and [] attempts to do so may be harmful."

o In a 2009 article in the journal Pediatrics, documentation supported the conclusion that " [m]inors who experience family rejection based on their sexual orientation face especially serious health risks."

The Legislature concluded that " California 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 ...


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