Banning a Pseudo-therapy: A One-Off, or a Breakthrough?

A New York Times editorial this morning commented on the unanimous upholding  of the California law prohibiting “conversion therapy”, aimed at changing the sexual orientation of minors, [ without that comma this reads very oddly indeed] by the Ninth Circuit Court of Appeals (www.nytimes.com/2013/09/08/opinion/sunday/banning-a-pseudo-therapy.html?partner=rss&emc=rss&_r=0). According to the Times, the panel of judges concluded that the law did not violate the free-speech rights of therapists and minor patients or the fundamental rights of parents, because it did nothing to prevent licensed therapists from discussing the pros and cons of conversion therapy with their patients. The law regulates conduct, not speech, the panel reasoned, and lies well within the power of the state to prohibit practices it considers harmful to minors.” (Not to change the subject, but this does make me wonder whether contributions of money will no longer be protected as political speech, or whether the Citizens United decision will somehow be twisted around to declare that conduct is speech and therefore is protected under the First Amendment…. We’ll see.)

How did this legislation get passed either in California or in New Jersey? Organizations of licensed mental health practitioners of all stripes have usually resisted any state regulation of their practices and have made clear their sense that professionals were best regulated from within their own professional group, but in this case professional organizations were highly supportive of the bills.

The Times editorial commented that the California legislature “relied heavily on professional reviews of the scientific literature” , but in fact very little systematic research on conversion therapy has ever been published and hardly amounts to enough for a meaningful review. Reports of adverse events have been anecdotal and in many cases were supplied by former conversion therapy patients, many of whom were quite justifiably angry at the whole experience. The reports of harm included depression, suicidal thoughts and behavior, and substance abuse, all of which also occur outside conversion therapy.

So, am I saying that conversion therapy for minors should not be prohibited? No, certainly not, and I testified in favor of the New Jersey bill, rejecting the treatment on the grounds that it borrowed unsupported beliefs and methods from other alternative psychotherapies which I would also like to see prohibited. What I am saying is that the science, although supportive of the legislation insofar as it could be, was not a serious factor in passage of these bills, but simply a decorative feature brought in as an extra talking point.  

How, then, did the bills really get passed? I am convinced that the actual motivating force was the enthusiastic organized pressure exerted by the LGBT community and the current groundswell of approval for LGBT freedoms. Essentially, LGBT groups argued that therapists ought not to try to change young people’s sexual orientations--  that whether such attempts “worked” or not, they were an intolerable interference with the rights of the individual, and many who had experienced the treatment had reported how unhappy it made them. The fact that the science, such as it is, supported these claims was simply a useful addition to the basic argument.  

I’m thinking about this in some detail because I wonder whether the conversion therapy legislation will open the doors for prohibition of other “pseudo-therapies” (to use the Times term) for children and adolescents. Legislation prohibiting treatments like “holding therapy” has rarely been passed, probably because mental health professionals who do not approve of these treatments are almost as likely to oppose such legislation as those who do approve. As I said before, generally speaking, organizations of mental health professionals have feared and fought efforts to regulate their practices. When therapists have injured patients (cf. John Rosen, Jacqui Schiff, Connell Watkins, etc.), legal proceedings against them have handled the events as examples of assault or of child abuse, not in terms of the use of potentially harmful therapeutic methods. In most cases, the state has no option for proceeding against a professional whose methods may do harm, and in mental health circles there have been few cases where a professional organization has disciplined someone for potential injuries (although sexual acts are always a reason for discipline even when no definite injury can be demonstrated).   The upshot of all this is that  legislation is the most powerful way to regulate potentially harmful practices, but the legislation opposing conversion therapy is a rare success in achievement of such regulation.

If the conversion therapy legislation is a breakthrough, it is possible that prohibition of other potentially harmful psychotherapies for children can be realized. The science is there, in better quality and quantity than what was brought into the conversion therapy discussion. It’s possible that professional groups, having swallowed the oft-rejected option of regulation by the state in the one case, may accept it in other cases as well. But, where is the enthusiastic, highly organized  group who will apply pressure on legislatures as the LGBT community did? This I don’t see, and I believe that organized pressure was the major reason for successful legislation.

There is increasing concern among psychologists and psychiatrists about the possibility of adverse reactions to various forms of psychotherapy, and research is much more likely than it once was to look for such problems. Unfortunately, some treatments for children are not likely ever to undergo formal reviews for safety and effectiveness, nor are therapists using these methods likely to be disciplined if a problem occurs. The reason for this is that alternative psychotherapies for children increasingly have parents do the actual treatment; if there are adverse events, the parent is at fault. All the therapist does is to instruct the parent and provide information, in return for payment, and since 1976 such commercial speech has been considered to some extent protected under the First Amendment.

It’s discouraging, all of this. But it reminds me of a statement whose source I used to know: “The day is short, the workmen are lazy. The task is difficult. It is impossible to succeed. Nevertheless, we are forbidden not to try.”