By BTL Staff
NEW JERSEY – The 3rd Circuit Court of Appeals ruled on Sept. 11 that the New Jersey ban on sexual orientation change efforts, known as ex-gay therapy is constitutional.
The Court agreed with the district judge's opinion from 2013 that so-called "talk therapy" is not protected under the First Amendment and the state is therefore within rights to regulate it.
Lower courts had defined ex-gay therapy as "conduct" instead of speech, even though the therapy practice primarily consists of talk therapy. The Appellate court ruled that speech is speech and not conduct and therefore not protected by the First Amendment.
The 9th Circuit had a similar ruling that upheld California's ban which the 3rd Circuit panel used to explain "a licensed professional's speech is not afforded the full scope of First Amendment protection when it occurs as part of the practice of a profession."
Like commercial speech, professional speech can be held to a different level of observation than daily speech.
The 3rd Circuit panel wrote that through their education and training, licensed professionals have access to a corpus of specialized knowledge that their clients usually do not. "Indeed, the value of the professional's services stems largely from her ability to apply this specialized knowledge to a client's individual circumstances. Thus, clients ordinarily have no choice but to place their trust in these professionals, and, by extension, in the State that licenses them."
The Court acknowledged that New Jersey has as vested interest in the well being of its citizens and "handcuffing" the State's ability to regulate a profession whenever speech is involved would undermine the authority to protect citizens from harm.
The New Jersey conversion therapy ban is trans-inclusive and therefore transgendered individuals are protected from such therapies attempting to change their gender identity and/or gender expression.
"This decision means that New Jersey youth will continue being protected from cruel and damaging practices that have been rejected by all leading medical and mental health professional organizations," NCLR Legal Director Shannon Minter said. "The court of appeals' ruling makes clear that state-licensed therapists do not have a constitutional right to engage in discredited practices that offer no health benefits and put LGBT youth at risk of severe harm, including depression and suicide. We thank Acting Attorney General John Jay Hoffman, Deputy Attorney General Susan Marie Scott, and the entire legal team at the Office of the Attorney General for their work defending this essential law."
The New Jersey law, Assembly Bill A3371, had 17 primary and co-sponsors and was signed into law by Governor Chris Christie on Aug. 19, 2013.
Upon signing, the governor stated the "crucial health risks" posed by conversion therapy that include "depression, substance abuse, social withdrawal, decreased self-esteem and suicidal thoughts."
