Conversion therapy ban violates First Amendment

Gov. Brian Sandoval signed into law this past week a legislatively passed bill that makes it illegal for any psychotherapist in Nevada to provide conversion therapy to anyone under the age of 18.

Senate Bill 201 defines conversion therapy as “any practice or treatment that seeks to change the sexual orientation or gender identity of a person.”

It states this therapy is barred “regardless of the willingness of the person or his or her parent or legal guardian to authorize such therapy.” The bill description justifies this usurpation of individual and parental rights by claiming the practice is ineffective and potentially harmful.

In a statement released to the press, the bill’s chief sponsor, state Sen. David Parks of Las Vegas, said, “Banning conversion therapy makes Nevada a safer place for children who are at a higher risk of anxiety, depression, substance abuse and even suicide.”

But what is therapy? These days it is not torture, electric shock or some emersion in aversion straight out of “A Clockwork Orange.” It is talk. You know, free speech.

But SB201 dictates that some speech is permissible while other speech is not. While it prohibits speech that might prompt a person to reconsider his or her sexual orientation or gender identity, it specifically allows support or confirmation for “a person undergoing gender transition …” or provides “acceptance, support and understanding of a person or facilitates a person’s ability to cope, social support and identity exploration and development …”

It is a one-way street. The courts have repeatedly ruled that laws that limit speech based solely on its content violates the First Amendment.

Presumably, if a professional merely talked to a minor about the results of years of research and studies and that talk resulted in a change of attitude about sexual orientation, that would be illegal under the law. Facts matter for naught.

Drs. Paul McHugh and Lawrence Mayer of Johns Hopkins University School of Medicine have written that 80 to 95 percent of all children who express feelings of gender dysphoria abandon those feelings upon maturity and that more than 80 percent of youth claiming to experience same-sex attractions in late childhood and adolescence identified themselves as exclusively heterosexual upon becoming adults. Would telling a minor to let nature take its course violate the law?

A late amendment to the law makes a ham-fisted attempt to protect religious counselors from being punished under the law, but it is so convoluted as to be indecipherable and totally useless. It tries to tiptoe around the Free Exercise Clause of the First Amendment, but instead does a Mexican hat dance.

It states “there is nothing in this bill that regulates or prohibits licensed health care professionals from engaging in expressive speech or religious counseling with such children if the licensed health care professionals: (1) are acting in their pastoral or religious capacity as members of the clergy or as religious counselors; and (2) do not hold themselves out as operating pursuant to their professional licenses when so acting in their pastoral or religious capacity.”

They have to take off their professional licensee hat and put on their clerical hat.

A group called the Alliance Defending Freedom points out the Catch-22 in that.

Nevada law states that it is “unlawful for any person to engage in the practice of marriage and family therapy … unless the person is licensed …” the Alliance points out. “Telling licensed professionals that they can only engage in certain speech and activities if they do so outside of the umbrella of their license exposes them to ethical and legal liability. It places them between a rock and a hard place. If they do the counseling under their license, they violate SB 201; if they do it outside the scope of their license, they violate” another law.

What a tangled web lawmakers weave when they decide they know what’s best for young people, and they and their parents don’t.

The Latin phrase is in loco parentis, meaning “in the place of a parent.” The emphasis should be on the loco. Someone should challenge the constitutionality of this law in court. — TM

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