Appeals court hears challenge to gay therapy ban

SAN FRANCISCO — A federal appeals court on Wednesday grappled with California’s first-in-the-nation bid to bar licensed mental health professionals from offering therapies aimed at making gay and lesbian teenagers straight.

A three-judge panel of the US Court of Appeals for the Ninth Circuit closely questioned both sides during the 90-minute hearing as it considered two challenges to the ban on ‘‘sexual-orientation change’’ counseling of minors that was signed into law last fall.

The ‘‘pivot point’’ of the legal debate, as Judge Morgan Christen called it, appears to be whether such counseling is speech protected by the First Amendment or medical treatment that can be regulated by government.


Chief Judge Alex Kozinski noted the US Supreme Court struck down a California ban of violent video games because the state failed to show a compelling reason to infringe on game-makers’ free speech rights to manufacture the products.

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He said it appeared the same argument could be applied to the evidence lawmakers relied on in passing the prohibition on sexual-orientation change therapy.

‘‘We really don’t have anything compelling, as I see it,’’ Kozinski said. ‘‘Government has to have a compelling interest in curtailing speech.’’

California Deputy Attorney General Alexandra Robert Gordon, who is defending the ban, cited mainstream medical organizations’ support of the law, and testimony before the state Legislature by several people who said they were harmed by the counseling.

Kozinski replied that opponents of the law also testified before lawmakers that they benefited from the counseling.


‘‘There is evidence going both ways,’’ Kozinski said.

Lawyers for parents of children who are undergoing the counseling and licensed professionals who administer the ‘‘talk therapy’’ argued the ban goes too far. But Mathew Staver, founder of the Liberty Counsel and a lawyer opposing the law, said there is ‘‘no evidence of harm.’’

The ban was to take effect Jan. 1. The appeals court put the law on hold until it resolves the issue, which has yielded contradictory lower court rulings so far.