'Conversion' Therapy for Unwanted Same-Sex Attraction: Parent-vs-State Conflicts About Controversial Medical Treatments for Children

Abstract

It is not always easy to find and maintain the proper balance between the legitimate role of parents and the appropriate role of the state concerning controversial medical treatment decisions for children. The recent enactment of laws prohibiting parents from providing to their children who have unwanted homosexual attraction professional psychotherapy (sometimes called “sexual orientation change efforts” or “SOCE” or “conversion therapy”) is one example of government efforts to address a significant social, medical and parenting dilemma.

In 2012 the California legislature enacted the first such law forbidding parents to provide SOCE to their children struggling with unwanted same-sex sexual attraction. Two lawsuits challenging the 2012 California “anti-SOCE” law were filed in federal courts in California with conflicting results, and the cases were appealed to the Ninth Circuit Court of Appeals. Less than a year later, New Jersey enacted a similar anti-SOCE law. While no other state enacted similar legislation, in April 2014, the District of Columbia City Council enacted an anti-SOCE ordinance for that jurisdiction. In April 2015 President Obama expressed his support for banning SOCE. The President’s announcement was in response to a petition signed by more than 120,000 persons seeking to ban SOCE therapy. The petition was stimulated by the suicide of a teenager whose parents enrolled her in a conversion therapy program over her objection.

The recent New Jersey, California and District of Columbia examples of lawmakers banning SOCE and state officials and of judges threatening and punishing professionals who offer professional SOCE therapy are only the latest of a long line of circumstances in which there has been tension and conflict between the rights of parents to control the medical treatment given their children and the parens patriae interests of the state to regulate parenting activities in the best interests of children. The cases have arisen in a variety of diverse circumstances, and have come before the Supreme Court of the United States in a variety of contexts.

This article describes and analyzes these and related developments that affect the rights of parents to obtain trained professional assistance to help their children escape or minimize the hold of unwanted same-sex attractions. The American judicial history concerning, including Supreme Court precedents addressing, the rights of parents to control medical treatment of their children and the potentially conflicting authority of the state to regulate parents in that activity are reviewed. Likewise, the California, New Jersey and District of Columbia anti-SOCE statutes and cases are examined, and the risks, potential benefits, and effectiveness of, and patient responses to such therapy is considered.

The article contains an analytical synthesis of the applicable legal (including constitutional) doctrines and decisions regarding the rights of parents to make decisions for their minor children. Suggestions for a coherent set of basic values, operational standards, jurisprudential principles and legal rules and approaches for resolving such parent-state conflicts are provided. The paper examines whether and, if so, how the California, New Jersey and District of Columbia legislatures and other state authorities have improperly intruded upon constitutionally protected parental decisional authority. It also will consider the implications of various forms of state regulation of parental medical decisions for children for family harmony which is associated with significant benefits for families, children and parents. State intrusion itself can exacerbate conflict and disharmony, but society’s interests in the well-being and protection of children -- even against well-meaning but misguided parents -- are very important and long-established.

The paper concludes by suggesting that a proper and effective balance between the conflicting interests in the basic legal approach and applicable jurisprudential principles. In light of ongoing, profound social changes in parenting forms, styles and contexts, the potential for increasing tension between state (representing socially-approved parenting) and the independent parenting rights of particular parents -- including not only parents belonging to minority religions and ethnic groups (as in the past), but also parents from diverse sexual and other controversial and potentially unpopular moral environments (in the present and the future) -- is not insubstantial. The need for a coherent, comprehensible, reasoned and reasonable set of legal principles to apply in such cases is obvious, and that is the contribution this article strives to make.

Keywords: conversion therapy, same-sex attraction, unwanted same-sex attraction, medical treatments, children, California, SOCE