Defending Ban on Sexual Orientation Change Therapy

A team of Munger Tolles litigators representing LGBT advocacy group Equality California successfully defended Senate Bill 1172, which prohibits state-licensed therapists from engaging in sexual orientation change efforts (“SOCE”) on minor patients. The law was challenged in two different lawsuits by practitioners of SOCE – sometimes called “reparative” or “conversion” therapy.

The plaintiffs argued that SB 1172 violates free speech and parental and religious rights. Munger Tolles defended SB 1172, arguing that it falls within the state’s powers to regulate medical practice and to protect the public health – and that the legislature was properly responding to a professional consensus among mental health organizations that SOCE is ineffective and puts patients at risk of serious harms, including depression and suicide. The federal judges handling the lawsuits issued conflicting rulings. U.S. District Judge Kimberly J. Mueller rejected plaintiffs’ motion for a preliminary injunction, while U.S. District Court Judge William Shubb granted the motion as to the three plaintiffs. The Ninth Circuit stayed the law pending the appeals. With co-counsel, the National Center for Lesbian Rights, Munger Tolles filed appellate briefs.

In a unanimous opinion in Pickup v. Brown, issued August 29, 2013, the Ninth Circuit upheld the law. Writing for the court, Judge Susan Graber held that SB 1172, as a regulation of professional conduct, did not violate the free speech rights of practitioners or minor patients, nor did it violate parents’ fundamental rights. On Jan. 29, 2014, the Ninth Circuit denied plaintiffs' petitions for rehearing en banc.

The court explained that homosexuality is no longer considered an illness by the American Psychological Institute, and that the prevailing opinion of the medical community is that the practice of “reparative,” or “conversion,” therapy has not been shown to be effective and that it creates a potential risk of serious harm. The court held that the legislation regulates only medical treatment and that the First Amendment does not prevent a state from regulating treatment even when the treatment is performed through speech.

A team of Munger, Tolles & Olson LLP litigators was awarded the California State Bar President’s Pro Bono Service Award for a Law Firm Team in October 2013.