California Senate Bill 1172 bans state-licensed mental health providers from engaging in “sexual orientation change efforts” (i.e., conversion therapy to change sexual orientation) with patients under 18 years of age. The constitutionality of the Bill was challenged in Pickup v. Brown and Welch v. Brown, in which the plaintiffs claimed that Bill violated the First Amendment because it prohibited therapists from expressing their viewpoints on same-sex relationships.
The federal district court in Welch v. Brown granted plaintiffs’ request for a preliminary injunction. Judge Shubb reasoned that the Bill affected speech based on its content and viewpoint, and applied strict scrutiny in his evaluation of the Bill. (Strict scrutiny is a form of judicial review in which the legislature must have passed the law to further a "compelling governmental interest," and must have narrowly tailored the law to achieve that interest.)
The federal district court in Pickup v. Brown denied plaintiffs’ request to temporarily block the new law. Judge Mueller applied a much lower standard of judicial review (rational basis) by deciding that psychotherapy was a type of conduct (medical treatment) that did not qualify as “speech” under the First Amendment. The court noted that the First Amendment does not prevent a state from regulating treatment, even when the treatment consists of speech alone.
The 9th Circuit panel agreed with Judge Mueller and held that the Bill regulates professional conduct, not speech and therefore was subject only to a rational basis review. The panel found that California has the authority to prohibit licensed mental health providers from “administering therapies that the legislature has deemed harmful”. The fact that speech is used to perform the therapy does not turn the Bill’s “prohibitions of conduct into prohibitions of speech”. The panel concluded that California’s legislature acted rationally when it decided to protect the well-being of minors by prohibiting mental health providers from using “sexual orientation change efforts” on persons under 18.
The plaintiffs in Welch have petitioned the 9th Circuit for an en banc review, and if this petition is unsuccessful, the plaintiffs have indicated they will petition the U.S. Supreme Court.