The Freedom to Be: Confronting the Constitutionality of Conversion Therapy
In 2012, California passed California Senate Bill 1172, and became the first state in the nation to ban the practice of conversion therapy [1]. Since then, 23 states have passed laws that ban conversion therapy for minors. Through landmark Supreme Court cases, LGBTQ+ advocates have fought to be treated as equals under the law and to garner the fundamental rights guaranteed to all citizens. As part of this on-going fight, special attention must be paid to the practice of conversion therapy and its inherent violation of the basic principles of equal protection and due process as stipulated by the Fourteenth Amendment. Beyond its unconstitutionality, conversion therapy further constitutes a deceptive and harmful practice that imposes significant economic and psychological burdens on society. Due to its unconstitutionality, as well as the negative economic and psychological impacts, it is of paramount importance to end this practice.
Broadly, conversion practices are “any intervention that seeks to change a person’s sexual orientation or gender identity. Conversion practices work towards one goal, and that is to ‘cure’ someone from being lesbian, gay, bi, trans, ace, intersex, and/or queer” [2]. Conversion practices tend to be categorized as psychotherapeutic, medical, or faith-based. Psychotherapy may include talk therapy, hypnosis, or in the most dangerous of cases, aversion therapy, in which people are exposed to painful sensations like electric shocks or corrective rape. Medical practices include the use of medicine, hormone, or steroid therapies. Lastly, faith-based conversion therapy is often performed by clergy and includes anti-gay slurs, prayers, and in extreme cases, beating, shackling, food deprivation, and exorcism [3].
Conversion therapy is based on the false premise that homosexuality is something that can be cured. Indeed, in the majority opinion of Obergefell v Hodges (2015), the Court acknowledged this pervasive belief of the past: “for much of the 20th century, homosexuality was treated as an illness. When the American Psychiatric Association published the first Diagnostic and Statistical Manual of Mental Disorders in 1952, homosexuality was classified as a mental disorder, a position adhered to until 1973” [4]. However, the overwhelming evidence shows that homosexuality is neither a mental illness nor something that needs to be cured. Even more so, there is a general consensus that conversion therapy is a “dangerous and discredited” practice, yet the practice continues to be performed in numerous states. In an alarming study, the Williams Institute found that 698,000 LGBT adults in the US have received conversion therapy, of whom 350,000 received it as adolescents. The same study predicted that about 16,000 LGBT youth will receive conversion therapy before they reach the age of 18 in the 32 states that currently do not ban the practice [5]. Finally, a recent study found that 15% of LGBTQ+ young people cited being subjected to conversion therapy as a reason they did not seek out desired mental health care [6]. These findings highlight the vulnerable position that LGBTQ+ youth find themselves in, especially those in states in which conversion therapy is not outlawed.
Since the onset of the 21st century, two court cases in particular have produced a wealth of legal literature on conversion therapy bans. In 2013, the Ninth Circuit Court of Appeals addressed California’s conversion therapy ban for licensed counselors in Pickup v Brown (2013). A year later, the Third Circuit Court of Appeals addressed New Jersey’s ban on the same practice in King v Governor of New Jersey (2014). Both cases upheld the laws banning conversion therapy and addressed free-speech arguments via two separate justifications. In Pickup, the court acknowledged that the ban impacted speech within the context of a therapist-patient relationship. However, the court recognized a new category of “professional speech” that merits lesser scrutiny [7]. The Third Circuit took a different approach in King. Rather than classifying a new type of speech, the court emphasized that the law regulated conduct, with speech being an incidental aspect of that conduct [8]. Importantly, in both cases, the courts found that the conversion therapy bans passed constitutional muster because it furthered a substantial government interest in protecting youth health and well-being. However, it must be noted that both cases are specific to professional practices and do not apply towards religious-based conversion therapy. This paper will later demonstrate that the conduct precedent set forth by King may be useful to address religious-based counseling.
As conversion therapy targets a specific class of people, the practice cannot stand under the Equal Protection Clause of the Fourteenth Amendment. Fundamentally, conversion therapy is a discriminatory practice, in which LGBTQ+ are subjected to differential treatment based on an immutable characteristic. In Romer v Evans (1996), a landmark Supreme Court victory for LGBTQ+ activists, Justice Anthony defined the scope of the Equal Protection Clause: a law may be upheld under the Equal Protection Clause, even in the case of disadvantaging a specific group, so long as the law can be shown to “advance a legitimate government interest” [9]. Importantly, in Romer, the Court concluded that Colorado’s attempt to “amend its constitution to deny homosexuals the same basic legal protections that heterosexuals receive” was “not to further a proper legislative end but to make them unequal to everyone else” [10]. By allowing conversion therapy, the government fails in its obligation to equally protect LGBTQ+ individuals, instead reinforcing social stigmatization and perpetuating inequality. It thus becomes clear that conversion therapy clearly violates an LGBTQ+ individual's right to live with dignity, safety, and equality enshrined in the Equal Protection Clause.
While the constitution does not explicitly enumerate the concepts, the Courts have stipulated the right to privacy, bodily autonomy, and self-determination as fundamental, which further illustrates the constitutional violations of conversion therapy. In what is typically viewed as the first Court case to recognize the constitutionality of privacy, Griswold v Connecticut (1965) found that in conjunction, the First, Third, Fourth, and Ninth Amendments create the right to privacy in what the Court defined as a “penumbra” [11]. In their concurring opinions, Justices Goldberg, Warren, Brennan, and Harlan located the right to privacy within the Fourteenth Amendment [12]. In 2003, Lawrence v Texas (2003) reaffirmed this principle of liberty and privacy, finding that “their right to liberty under the due process clause gives them the right to engage in their conduct without the intervention of the government” [13]. Importantly, the Rehnquist Court aimed to determine whether Lawrence and Garner, two gay men, were free to engage in private conduct in the exercise of their liberty under the Due Process Clause. The Court, as evidenced above, answered with a resounding yes, finding that gay men are constitutionally guaranteed the right to exercise their liberty with regards to homosexual sex. Conversion therapy, on the other hand, aims to prohibit LGBTQ+ individuals from freely expressing their liberty. The Rehnquist Court also recognized a similar argument in Planned Parenthood v Casey (1992), finding that “our law affords constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education” [14]. In her majority opinion, Justice O’Conner wrote, “these matters…choices center to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life” [15]. Conversion therapy fundamentally undermines the concept of self-determination and bodily autonomy. By forcefully pressuring LGBTQ+ individuals to alter natural and intrinsic parts of their identity, conversion therapy exercises unjustified control over an individual's own body and dignity, thereby preventing them from living with liberty, in a society in which the right to define one’s own concept of existence should theoretically be guaranteed.
Beyond just a constitutional scope, conversion therapy facilitates a fraudulent and deceptive market, which violates consumer rights. In 2012, The Southern Poverty Law Center filed a lawsuit in the Superior Court of New Jersey alleging that Jews Offering New Alternatives to Homosexuality (JONAH) was participating in fraudulent marketing. Following a three week trial in 2015, a jury found JONAH guilty of fraudulent marketing for falsely claiming that they could “cure homosexuality” [16]. The jury held JONAH liable under New Jersey’s Consumer Fraud Act, which protects consumers from unconscionable commercial practice, deception, or fraud. The overwhelming majority of peer-reviewed studies found “no credible evidence that sexual orientation can be changed through therapeutic intervention” [17]. Even if one does not identify conversion therapy as “unconscionable” (as described by New Jersey’s Consumer Fraud Act), it cannot be denied that the claim of “curing homosexuality” violates a consumer’s protection against deception and fraud. Importantly, the protection against fraudulent transactions is not just protected in the NJCFA, but also in federal law. Particularly, 15 U.S.C § 45 gives the Federal Trade Commission the authority to regulate “unfair or deceptive acts or practices in or affecting commerce” [18]. Recent studies suggest that the market for conversion therapy is likely larger than one might expect. For instance, in a systematic literature review, Forsythe et al., 2022, found that the annual cost of Sexual Orientation and Gender Identity Change Efforts (SOGICE) is estimated at $650.16 million, with associated harms totalling an estimated economic burden of $9.23 billion [19]. This large market reinforces the necessity of conversion therapy bans, due to the practice’s misrepresentation of the nature and outcome, violating a consumer's protection against fraudulent practices. By exploiting individuals with false marketing, conversion therapy fails to meet the basic ethical and legal standards expected of consumer services.
Some may argue that banning conversion therapy impedes the right of parents to determine the upbringing of their children, yet the argument rests on the false presumption that parents have absolute authority. Proponents of parental rights may cite Washington v Glucksberg (1997). In his majority opinion, Chief Justice Rehnquist wrote, “in a long line of cases, we have held that, in addition to the specific freedoms protected by the Bill of Rights, the “liberty” specially protected by the Due Process Clause includes the rights…to direct the education and upbringing of one’s children” [20]. Indeed, the Court has found that parents have a great deal of authority in raising their children how they see fit. Thus, it may seem reasonable to believe that, if a parent believes that forcing conversion therapy upon their child is in the child’s best interest, it is well within their parental rights to do so. Yet, this surface-level understanding of parental rights reflects a dangerous, pervasive belief within society. Rather than absolute authority of their child’s upbringing, Prince v Massachusetts (1944) found that “acting to guard the general interest in youth’s wellbeing, the state, as parens patriae, may restrict the parent’s control” [21]. Literally translated as “parent of the homeland”, parens patriae is a doctrine that “declares the State the ultimate guardian of every child” [22]. As such, Prince found that “the right…does not include liberty to expose the community or the child to communicable disease or the latter to ill health or death” [23]. It is the sad reality that about 27% of U.S. LGBTQ+ youth who had experienced conversion therapy had attempted suicide within the previous 12 months of 2023 [24]. In the most extreme cases, subjecting a child to forceful conversion therapy might result in ill health or death, which clearly illustrates the need for state intervention. But, even excluding suicide, the aforementioned studies have clearly shown the extreme physical, emotional, and psychological damage for LGBTQ+ youth subjected to conversion therapy. To continuously assert a parental right to place a child in conversion therapy is to turn a blind eye to these grim studies and statistics and completely disregard that child’s wellbeing. It cannot be shown clearer that affirmative government action is needed to protect the wellbeing of vulnerable LGBTQ+ youth. Prince clearly outlines the conditions in which the government may place limits of parental authority, and in every such case of conversion therapy, the necessity of the protection of youth wellbeing is sufficient in satisfying Prince’s conditions.
Alternatively, other critics might cite religious and speech freedoms in regards to conversion therapy, but these claims once again hinge on the belief that these liberties are absolute. Recently, the Court has set a dangerous precedent that free speech and free exercise, even when perpetuating discrimination, trump other constitutional rights. For instance, in 303 Creative LLC v Elenis (2023), the Court found that the Colorado AntiDiscrimination Act, which prohibited businesses from discriminating on the bases of sexual orientation, violates the First Amendment by forcing a website designer to create expressive designs that convey messages with which the designer disagrees [25]. In a similar case, Masterpiece Cakeshop, Ltd. v Colorado Civil Rights Commission, held that while same-sex couples are afforded civil rights under the constitution, religious and philosophical objects to same-sex marriage are protected views and can also be protected forms of expression [26]. Indeed, the right to freedom of expression and religious exercise is fundamental to this nation. Yet, the Court has found, on occasion, situations in which these rights may be limited, showing that these liberties are not absolute. For instance, Reynolds v United States (1879) held that it is not a valid defense to a crime to cite a religious belief or religiously imposed duty. Perhaps more relevant to conversion therapy is the aforementioned Prince v Massachusetts (1944) in which the Court found that “when state action impinges upon a claimed religious freedom, it must fall unless shown to be necessary for or conducive to the child’s protection against some clear and present danger” [27]. This precedent was reaffirmed in Sherbert v Verner (1963), in which the Court held that “government actions that substantially burden a religious practice must be justified by a compelling governmental interest” [28]. It has been repeatedly shown that the federal government has a clear and compelling interest in protecting LGBTQ+ individuals from the associated harms of conversion therapy, which would pass the Sherbert test in limiting religious exercise with respect to religious-based conversion therapy. Furthermore, the constitution does not permit harmful practices that infringe upon the rights and welfare of others. In such a way, the limitation of conduct, even with incidental effects on speech, set forth by King should be applied to religious-based conversion therapy. Arguably, because conversion therapy is inherently harmful and ineffective, there is no fundamental difference between professional and religious-based therapies. Therefore, since religious-based therapies can be classified as conduct, and since these therapies infringe on the basic rights of other individuals, King can be used to prohibit religious-based therapies, regardless of the incidental effects on free exercise. Thus, while the government protects free exercise, religious-based conversion therapy can still be found to be unconstitutional on the grounds that the religious exercise inherently impedes other individuals from their guaranteed liberties.
It has thus been shown that the dangerous practice of conversion therapy is inherently and fundamentally incompatible with the principles of equal protection and due process ingrained in the Fourteenth Amendment. Furthermore, in addressing the claims that conversion therapy bans interfere with parental and religious rights, it has been shown that in certain cases, particularly those in which a marginalized community finds itself under attack, the government has a clear and compelling interest in restricting the aforementioned rights in favor of protecting the wellbeing of its citizens. The protection of LGBTQ+ individuals from conversion therapy is the epitome of this scenario and the government has an obligation to protect vulnerable LGBTQ+ individuals. In 1868, the Fourteenth Amendment was ratified, guaranteeing affording all U.S. citizens equal protection under the law and the right to due process. 156 years later and this promise has yet to be fulfilled. So long as conversion therapy is allowed in the U.S., LGBTQ+ individuals can never fully exercise their rights and freedoms in a safe and non-discriminatory way. Nevertheless, by finding conversion therapy to be an unconstitutional practice, the Court can take a long overdue step forward in honoring the commitment set forth 156 years ago to justice, equality, and acceptance for all citizens.
Bibliography
[1] California Senate Bill No. 1172
[2] Stonewall UK. "Everything You Need to Know about Conversion Practices." News release.
[3] Sreenivas, Shishira. "What Is Conversion Therapy?" Edited by Melinda Ratini. WebMD. Last modified March 6, 2024.
[4] Obergefell v Hodges, 576 US__(2015)
[5] Williams Institute. "LGB People Who Have Undergone Conversion Therapy Almost Twice as Likely to Attempt Suicide." News release. June 15, 2020.
[6] Trevor News. "New Report Reveals Alarming Prevalence of Conversion Therapy, With Over 1,300 Active Practitioners Across the U.S." The Trevor Project. Last modified December 12, 2023.
[7] Pickup v Brown, 740 F.3d 1208 (9th Circuit, 2013)
[8] King v Governor of New Jersey, 767 F.3d 216 (3rd Circuit, 2014)
[9] Romer v Evans, 517 US 620 (1996)
[10] Ibid.
[11] Griswold v Connecticut, 381 US 479 (1965)
[12] Ibid.
[13] Lawrence v Texas, 539 US 558 (2003)
[14] Planned Parenthood of Southeastern Pennsylvania v Casey, 505 US 833 (1992)
[15] Ibid.
[16] Ferguson v JONAH, N.J. Super. Ct. Law Div. (2015)
[17] Stonewall UK. "Everything You Need to Know about Conversion Practices." News release.
[18] 15 U.S.C Section 45
[19] Forsythe, Anna, Casey Pick, Gabriel Tremblay, Shreena Malaviya, Amy Green, and Karen Sandman. "Humanistic and economic burden of conversion therapy among LGBTQ youths in the United States." JAMA pediatrics 176, no. 5 (2022): 493-501.
[20] Washington v Glucksberg, 521 US 702 (1997)
[21] Prince v Massachusetts, 321 US 158 (1944)
[22] Chao, Raymond. "Parens Patriae and the Juvenile Death Penalty." Children's Legal Rights Journal 21, no. 1 (2001).
[23] Prince v Massachusetts, 321 US 158 (1944)
[24] "Percentage of LGBTQ Youth in the U.S. with Experience with Conversion Therapy who Attempted Suicide." Statistica. Last modified 2023.
[25] 303 Creative LLC v Elenis, 600 US__(2023)
[26] Masterpiece Cakeshop, Ltd. v Colorado Civil Rights Commission, 584 US__(2018)
[27] Prince v Massachusetts, 321 US 158 (1944)
[28] Sherbert v Verner, 374 US 398 (1963)