ABOVE: NYC. Photo by Daniel Schwen, courtesy Wikimedia Commons.
Corey Johnson, the openly gay Speaker of the New York City Council, introduced a bill Sept. 12 to repeal a law the Council passed in 2017 that prohibits mental health professionals from performing so-called conversion therapy on both adults and minors.
Johnson said he remains convinced the practice of attempting change a person’s sexual orientation or gender identity is harmful and ineffective based on assessments by virtually all of the nation’s mainstream mental health advocacy organizations, which have issued statements opposing conversion therapy.
But he said a lawsuit filed in January of this year challenging the constitutionality of the law could result in court rulings harmful to the effort to ban conversion therapy, including a possible negative ruling by the U.S. Supreme Court.
The lawsuit was filed by the anti-LGBT Alliance Defending Freedom on behalf of an Orthodox Jewish psychotherapist from Brooklyn, Dovid Schwartz, who charges that the law violates his and his patients’ First Amendment right to therapeutic counseling or “speech” of their own choosing.
“Obviously, I didn’t want to repeal this,” Johnson told the New York Times. “I don’t want to be someone who is giving in to these right-wing groups,” the Times quoted him as saying. “But the Supreme Court has become conservative; the Second Circuit, which oversees New York, has become more conservative,” he said.
“We think this is the most responsible, prudent course,” he told the Times.
Ethan Rice, senior staff attorney and Fair Courts Project Director for the LGBT litigation group Lambda Legal, told the Washington Blade in a statement that Lambda Legal believes the New York City ban on conversion therapy is constitutional.
But he said there is “no reason to waste time and money” fighting the lawsuit because an existing New York State law bans conversion therapy for minors. He said another state consumer protection law enables adults to bring consumer fraud cases against therapists engaging in conversion therapy.
New York City became the first known jurisdiction to extend its ban on conversation therapy to adults. Laws banning conversion therapy for minors have been enacted in 18 states, D.C. and more than 50 municipalities, according to the Williams Institute, an LGBT think tank affiliated with the UCLA School of Law.
“State laws prohibiting licensed therapists from this outrageous and harmful practice are the gold standard for legislation on this issue,” Rice told the Blade. “There have been a handful of challenges to those laws, but they have all failed,” he said.
“It is very well-established that states have the authority — and the responsibility — to regulate mental health treatments to protect patients, especially minor patients, and especially when the potential harms are life-threatening,” Rice said.
He was referring to widespread reports by mental health experts that young people who undergo conversion therapy to change their sexual orientation or gender identity, often under pressure from parents, have suffered from depression and attempted and in some cases committed suicide.
In his lawsuit, Schwartz says many of his patients seeking conversion therapy are members of the Orthodox Jewish community.
“The patient-psychotherapist relationship requires giving patients the ability to express themselves without fear of reprisal and allowing therapists the freedom to respond to that expression with understanding,” the lawsuit states. “It is the last possible place where the government should be dictating what topics or ideas are off limits,” it says.
“Specifically, if an adult patient is experiencing — and does not wish to experience — same-sex attractions, or a sense of gender identity that is discordant with his or her biological sex, the [law] threatens fines as high as $10,000 against a psychotherapist if he or she offers any thoughts — or indeed says anything at all — to assist the patient in pursuing a personally chosen goal of reducing same-sex attractions, increasing attraction to the opposite sex, or achieving comfort in a gender identity congruent with the patient’s physical body and reproductive nature,” the lawsuit says.
It says these restrictions violate Schwartz and his patient’s First Amendment rights of freedom of speech.
Wayne Besen, executive director of Truth Wins Out, an LGBT advocacy group that fights conversion therapy, called the arguments in Schwartz’s lawsuit “ridiculous and fatally flawed.”
“To argue that there should not be government interference in counseling and medicine is preposterous,” he told the Blade. “This is precisely the arena where government should be intimately involved to prevent unprincipled and dubious practitioners from harming clients,” he said. “We have licensing specifically to prevent quacks, whether religious faith healers or otherwise, from inflicting harm.”
