California lawmakers are advancing a new strategy to discourage efforts to change a person’s sexual orientation or gender identity after the U.S. Supreme Court struck down a Colorado law banning the practice. The strategy: Extend the statute of limitations for medical malpractice claims.
A bill introduced by Sen. Scott Wiener, a Democrat from San Francisco, would increase the time period during which someone could file a malpractice suit against a mental health professional for trying to change their sexual orientation or gender and harming them in the process. Depending on the age of the person who files the claim, the bill would increase the statute of limitations from three years to 22 years or within five years of discovering the harm.
“You can't change someone who is LGBTQ into not being LGBTQ. All major medical associations agree that sexual orientation and gender identity are immutable characteristics, and that so-called conversion therapy is fraud that harms patients,” Wiener said during a recent Senate Judiciary Committee hearing.
Wiener likened the change to a similar move by the Legislature to extend the statute of limitations for victims of child sexual assault.
The committee voted 10-to-2 Tuesday to advance the legislation along party lines.
Major medical and mental health organizations condemn conversion therapy, which is rooted in the now-debunked theory that homosexuality was a mental illness. Studies link it to increased depression and suicidality — and no credible evidence shows it works.
California was the first state to ban using the practice on children in 2012, and many states followed suit. But last month, the Supreme Court sent a case contesting Colorado’s conversion therapy ban on First Amendment grounds back to the lower courts. In an 8-to-1 opinion, the justices sided with Kaley Chiles, a Christian therapist who argued the law violated her free speech rights because it allowed her to “affirm” a client’s sexual orientation but prevented her from speaking about changing their orientation for clients who have that goal.
The opinion did not rule directly on the constitutionality of Colorado’s conversion therapy ban, but Justice Neil Gorsuch implied in the majority opinion that Colorado’s ban would fail the “strict scrutiny” test required of laws that regulate speech.
“What this decision is essentially saying is that it doesn’t matter that states have an interest in regulating the quality of care for their patients. Her right to express herself doesn’t stop when she steps into her office and practices her profession that is licensed by the state” said Elana Redfield, an attorney and federal policy director at UCLA’s Williams Institute, which researches LGBTQ legal issues.
Making more time for malpractice claims
The decision endangers California’s law as well as dozens of similar laws in other states, but Shannon Minter, legal director for the National Center for LGBTQ Rights, said the court’s decision gives him some hope. Because almost all medical organizations have disavowed conversion therapy, attempting it would still be considered malpractice even if state bans are no longer in effect.
“After having some time to digest the opinion and read it carefully, it seems there is a very clear path forward, and at the end of the day paradoxically we’ll be in a much stronger legal position in terms of these protections,” Minter said.
In the majority opinion, Justice Gorsuch differentiated malpractice laws from bans stating that they allow “breathing room for protected speech.”
In California, a patient can sue a medical provider for damages if they believe they were injured by the provider’s negligent behavior. These types of cases require expert witnesses to testify about the accepted standard of medical care and also place the burden of proof on the patient.
The remaining obstacle, Minter said, is time. Many LGBTQ individuals don’t realize the harm until years later, well past the existing statute of limitations. Wiener’s proposal would solve that problem and help deter state-licensed therapists from engaging in the practice in the first place, he said.
“One of the unique ways conversion therapy harms young people in particular is it encourages them to blame themselves for the therapy failing,” Minter said. “Almost (every time) that someone comes to us or another attorney realizing that it is not their fault, it’s too late. That has happened with us time and time again.”
Christian groups, parents oppose
Opponents of the measure say it’s a clear effort to circumvent the Supreme Court’s decision, which will likely prevent states like California from enforcing conversion therapy bans.
“If they can’t ban the counseling, they’ll bankrupt the counselors who do it,” said Greg Burt, vice president of the California Family Council, a Fresno-based Christian advocacy group.
Burt argued the Supreme Court was clear in ruling that a therapist’s speech during a client’s session is constitutionally protected and that Wiener’s measure, if passed, would face the same legal challenges since it would still effectively suppress speech.
Burt acknowledged that counseling is “pointless” if the client doesn’t agree with the goals of the therapy, but said some Christians may feel same-sex attraction or gender dysphoria but still want to live according to their faith.
“I would hope people can pick their own goals in counseling and it would protect anybody. Why is the government involved in which goals we have for our life regarding sexuality and gender identity,” Burt said.
The bill is also opposed by California Baptists for Biblical Values and other groups that have historically opposed state efforts to shore up protections for transgender youth.
Decision calls into question “talk therapy”
Julia Sadusky, a licensed psychologist in Colorado, co-authored an amicus brief in the Chiles v. Salazar case asking the Supreme Court to uphold the ban – and describes herself as a theologically orthodox Catholic.
For years, she has counseled children from religious families who want to align their identities with their faith; the ban, she said, never got in the way of her work. She and another Christian psychologist developed a clinical method to help religious LGBTQ youth explore identity without coercive practices.
The key distinction in her practice, Sadusky said, is that she never promises a predetermined outcome. Clients make their own choices about how to live — some pursue same-sex relationships, some do not, some transition, some don't.
“The focus is on, how do I resolve value conflicts that come up for me when I have conflicts between different aspects of my identity, not how do I change my identity as such,” Sadusky said.
She’s worried now that the Supreme Court’s decision will “wreak havoc on the credibility of therapy” as a clinical practice.
“The most troubling part to me was the framing of talk therapy as merely protected free speech, given that talk therapy incorporates treatment modalities or ought to, and isn't merely telling a person what you believe about their life or what you recommend to them,” she said.
Some legal scholars agree. Redfield with UCLA’s Williams Institute said the court’s decision could have widespread impacts on the medical field.
“All patients should be concerned because this undermines our ability to trust doctors. And it places the burden on consumers to bring a lawsuit,” Redfield said.
Supported by the California Health Care Foundation (CHCF), which works to ensure that people have access to the care they need, when they need it, at a price they can afford. Visit www.chcf.org to learn more.
This article was originally published on CalMatters and was republished under the Creative Commons Attribution-NonCommercial-NoDerivatives license.
