Limiting opportunities?

Bitzer is a plaintiff in one of the lawsuits seeking to bar the measure from taking effect. In an interview, he said the new law could prevent minors from receiving treatment he believes is helpful if they want to combat same-sex attraction.

The law also could curtail his professional ambitions: Bitzer said he hopes to someday open a practice that offers such therapy.

He said he first began to experience same-sex attractions in junior high school, and that those feelings have been diminished through church counseling and other programs, including weekend retreats with names such as "Living From the Heart" or "Adventure in Manhood."

He said no one should be forced to move away from same-sex attractions, but that allowing SB 1172 to take effect would limit opportunities for youths who want such treatment.

"Men like me who wish to become therapists and work in counseling others in our churches would be forced to promote factually unsound ideas, such as the notion that we are simply 'born this way' and there is no possibility of change," Bitzer said in a declaration filed in court.

Plaintiffs in the two lawsuits include therapists who say the law will unfairly harm their practices and put them at risk of disciplinary action by state regulators.

The law says the use of conversion therapy on minors "shall be considered unprofessional conduct and shall subject the provider to discipline by the provider's licensing entity."

Other plaintiffs include the National Association for Research and Therapy of Homosexuality, known as NARTH, a Utah-based group that contends there is "no reliable scientific evidence" that therapy to reduce same-sex attraction is harmful.

Joseph Nicolosi, a psychologist and plaintiff in one of the suits, says in court papers that he makes it clear to potential clients that they should find another counselor if their treatment goals include wanting "to continue in their homosexual lifestyle."

For those who want to eliminate their same-sex attractions – such as John Doe 2, the 14-year-old who is one of his patients – the treatment has been helpful, Nicolosi contends.

Videos of Nicolosi espousing his treatment are available on the Internet and show him encouraging individuals to seek out their "heterosexual potential."

The very existence of these videos could expose him to sanctions by state licensing agencies, up to and including losing his ability to practice, for being in violation of the new law, he contends.

A free-speech issue

The two federal judges in Sacramento who are grappling with the lawsuits looked at the free-speech issue raised by therapists and reached opposite conclusions in separate orders issued this month.

One found that the state ban infringes on therapists' free-speech rights. The other found it does not.

U.S. District Judge William B. Shubb cited case law in concluding that a therapist's advice to a patient is speech protected by the First Amendment.

Shubb then looked at whether the state was restricting that speech based on its content and prohibiting it based on the viewpoint it reflects. He decided that was the case, so was then obligated to apply the "strict scrutiny" test, a demanding legal standard that requires the state to show it has a compelling interest in taking action that infringes on constitutional rights.

The lack of evidence demonstrating "actual harm" to patients, and the fact the measure prohibits only licensed mental health providers from engaging in conversion therapy – while allowing unlicensed individuals to engage in it – prompted Shubb to rule that SB 1172 "is not likely to withstand strict scrutiny."

He issued a preliminary injunction barring application of the law to the three named plaintiffs in the lawsuit before him: two therapists and Bitzer.

On the other hand, U.S. District Judge Kimberly J. Mueller determined that a therapist's advice to a patient is not speech, but professional conduct subject to state regulation and not a fundamental right. This allowed her to apply the "rational basis" test, a standard much lower than strict scrutiny.

According to U.S. Supreme Court precedent, the question posed under the rational basis test is merely whether "the government could have had a legitimate reason for acting as it did."

Mueller found that the Legislature acted to shield minors from the treatment's purported harms. Consequently, she ruled, the therapists who filed the lawsuit before her are not likely to prevail on their free-speech claim, and she declined to issue a preliminary injunction.

The plaintiffs in that suit plan an appeal, but the net result so far is that the law takes effect Jan. 1 for everyone but Bitzer and the two therapists in his lawsuit.