State House Update: BBA Submits Testimony in Support of Conversion Therapy Ban

Last month, we updated you on our 2019 – 20 legislative priorities, including continued support for a ban on the use of “conversion therapy” on minors, first endorsed by the BBA in 2015. This very issue was the topic of one of the first committee hearings of the legislative session. Keep reading to learn more about the hearing and why Massachusetts should pass Rep. Kay Khan’s H. 140, An Act Relative  to Abusive Practices to Change Sexual Orientation and Gender Identity in Minors.

On Wednesday, the Joint Committee on Children, Families, and Persons with Disabilities convened a hearing to take up legislation banning the use of “conversion therapy” practices on minors by licensed health professionals in the Commonwealth. The hearing room was packed and included testimony from many legislators as well as advocates and experts, including Arlene Isaacson of the Massachusetts Gay and Lesbian Political Caucus, Ben Klein of GLAD, Dr. Carole Allen of the American Academy of Pediatrics and Kate Thompson of Boston Children’s Hospital also explained why this legislation is so important.

The BBA is proud to join these voices by submitting written testimony in support of H.140. You can read the full testimony here

The testimony, submitted by BBA Family Law Section member Elizabeth Roberts of Roberts & Sauer LLP, explains that the legislation offers necessary legal protection for minors from a practice that medical and child welfare experts agree does not align with current scientific understandings of sexual orientation and gender identity and is not only ineffective but downright unsafe. Typically, the use of this therapy occurs in the context of familial rejecting behaviors and attitudes, and, no matter the parents’ intentions in seeking this “treatment”, will be read by the youth as a rejection of their sexual orientation and/or gender identity—that is to say, a repudiation of who they are as human beings. Many studies have shown that LGBTQ minors who face this type of rejection are at a much higher risk of negative health and social outcomes, including higher rates of depression, substance use, suicide attempts, homelessness and entrance into the child welfare and juvenile justice systems.

Under the bill, adults would still be free to choose conversion therapy, no matter how ill-advised, for themselves. But given the substantial likelihood of serious psychological and social harm to minors who are subjected to conversion therapy, it is essential that they are protected from the imposition of this misguided treatment at the direction of their parents or guardians.

Our testimony additionally focuses on the legal aspects of the legislation, pointing out that First Amendment challenges to similar laws have consistently been dismissed in other jurisdictions and the bans have been upheld as valid exercises of the state’s power. For example, in Pickup v. Brown, the Ninth Circuit upheld a law prohibiting the use of conversion therapy on minors because “[p]ursuant to its police power, California has authority to regulate licensed mental health providers’ administration of therapies that the legislature has deemed harmful.” (740 F.3d 1208,1229 (9th Cir.), cert. denied, 134 S. Ct. 2871 (2014), and cert. denied sub nom. Welch v. Brown, 134 S. Ct. 2881 (2014)). The court found the bill did not regulate protected speech but rather protected vulnerable young people from treatments deemed ineffective and unsafe by the overwhelming consensus of medical and child welfare experts. In 2014, the Supreme Court declined to review the law after the court rejected the claim that the legislation infringed on free speech. Additionally, in 2017, the Supreme Court declined to hear a case challenging the California law on the grounds that it impinged upon the free exercise of religion.

Reaching a similar outcome through a different approach, the Third Circuit upheld the New Jersey ban in King v. Christie (767 F.3d 216 (3d Cir. 2014)). While the Court viewed the law as a regulation on speech, it found this to be a permissible restriction because it easily passed review under the intermediate scrutiny standard that applies to restrictions on “professional speech.” Ultimately the court found it reasonable to conclude a minor client might suffer harm from the use of the practice, given the substantial evidence of the likelihood of such harm presented to state legislators.

Thus, the existing case law makes it clear H.140 is a valid exercise of the Commonwealth’s power to regulate medical professionals and protect public health and safety. And the youth and families of Massachusetts deserve assurance that minors will not face harmful or abusive treatment when seeking assistance from licensed professionals. The BBA joins a long list of medical and professional organizations in opposing the use of these practices, including the American Bar Association and the American Psychological AssociationAmerican Medical AssociationAmerican Academy of PediatricsNational Association of Social Workers, and the Pan American Health Organization. To date, fifteen states, six more since the hearing last session, have passed legislation barring the use of conversion therapy on minors, and it seems now is the time Massachusetts become the sixteenth state to enact these protections.

Following the hearing, H.140 was reported favorably by the Committee, and we will keep you posted on ways you can join us in making sure these protections are enacted this session!

—Alexa Daniel
Legislative and Public Policy Manager
Boston Bar Association