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California ban on gay conversion therapy put on hold

December 22, 2012 |  8:14 am

A new state law intended to prevent therapists from trying to change a minor's sexual orientation was put on hold Friday by a federal appeals court panel.

The law would subject psychologists, psychiatrists and other mental health professionals to discipline by their licensing boards for providing minors therapy to change their sexual orientation. The state and many professional groups say the therapy is ineffective and potentially dangerous.

A three-judge panel of the U.S. 9th Circuit Court of Appeals agreed to block the law, scheduled to take effect Jan. 1, pending a decision on its constitutionality.

"This is a very good sign for our clients," said Mathew Staver, found of Liberty Counsel, a religious liberties group that sued to block the law, arguing that it violates free speech rights. "To get an injunction pending appeal is a very difficult thing to do."

A spokeswoman for state Atty. Gen. Kamala D. Harris said she would "vigorously defend" a law that banned what she termed an "unsound and harmful practice."

A District Court judge initially rejected the suit by Liberty Counsel, whose clients include a 15-year-old boy undergoing the therapy. The Christian-oriented legal group appealed that decision to the 9th Circuit.

The judges who are hearing the case are Alfred T. Goodwin, appointed by President Nixon; Edward Leavy, a President Reagan appointee; and Milan D. Smith Jr., named to the court by President George W. Bush.

Staver, calling the preliminary injunction "very welcome news," said it was "never routine" and granted only in extraordinary situations when the court believes an appeal has a "likelihood of success."

UC Irvine Law School Dean Erwin Chemerinsky, who believes that the law is constitutional, said its opponents "won this round."

"This doesn't determine the ultimate outcome by the 9th Circuit," the constitutional law expert said. "It still has to rule on the merits, and it could well go to the Supreme Court. But obviously this is a preliminary loss for supporters of the law."

California's ban on trying to change a minor's sexual orientation, the first of its kind in the nation, has divided the lower courts. The federal judge in Sacramento who refused to block the law was appointed by President Obama. She concluded that it did not violate the 1st Amendment. Her colleague on the same bench, appointed by President George H.W. Bush, concluded that it was likely that the law infringed on free speech protections.

Communication between professionals and their clients generally has less 1st Amendment protection than other forms of speech. For instance, a lawyer or doctor who negligently gives bad advice may be found liable for malpractice, and licensing requirements for professionals may be restrictive.

The Supreme Court upheld a law that required doctors to tell patients about potential harmful effects of an abortion, but the 9th Circuit blocked a federal law designed to prevent doctors from discussing the benefits of marijuana with patients.

Therapy to change sexual orientation may involve psychoanalysis, cognitive behavioral treatment and religious and spiritual counseling. Some therapists have practiced aversion therapy using hormone treatments and nausea-inducing drugs to combat sexual impulses.

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-- Maura Dolan in San Francisco

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