“AB 2942 moves through the California Assembly, and is set to ban conversion therapy in California.” I read this and was slightly confused, as I knew conversion therapy was already banned in California.
I saw many headlines about banning books and censoring the Bible. “That’s a little crazy,” I thought. I wanted to know if this bill was that bad. Can the state actually use it to censor booksellers?
In short, no. It’s not that bad. It’s much worse.
The Expansion of an Ideologically Activist Law
Since “Conversion Therapy” is already banned in California, it’s confusing as to why we have yet another bill to ban conversion therapy. And yes, in the debate on the bill on the California Assembly floor, the bill’s author definitely made it sound like it was nothing but “business as usual.”
But trust me, there’s a reason for a new law. Oh boy is there a reason.
Despite the proponents’ declarations that this law is “very narrow in scope,” the bill would make significant changes to existing law. However, these changes come about by small changes — redactions from previous legal language and moving from one section to another of the California Code — not grand language.
That’s why it is so important to point out these monumental changes — EVERYTHING changes with this law.
Change Number 1: It’s Not Just Doctors Anymore.
The previous bill that banned “conversion therapy” was passed in 2012 as SB 1172. Most people will not notice the difference in the old SB 1172 definition of “sexual change efforts” and the new AB 2943 definition. See if you can spot it:
(i) (1) “Sexual orientation change efforts” means any practices by mental health providers that seek to change an individual’s sexual orientation. This includes efforts to change behaviors or gender expressions, or to eliminate or reduce sexual or romantic attractions or feelings toward individuals of the same sex.(2) “Sexual orientation change efforts” does not include psychotherapies that: (A) provide acceptance, support, and understanding of clients or the facilitation of clients’ coping, social support, and identity exploration and development, including sexual orientation-neutral interventions to prevent or address unlawful conduct or unsafe sexual practices; and (B) do not seek to change sexual orientation.
(i) (1) “Sexual orientation change efforts” means any practices that seek to change an individual’s sexual orientation. This includes efforts to change behaviors or gender expressions, or to eliminate or reduce sexual or romantic attractions or feelings toward individuals of the same sex.(2) “Sexual orientation change efforts” does not include psychotherapies that: (A) provide acceptance, support, and understanding of clients or the facilitation of clients’ coping, social support, and identity exploration and development, including sexual orientation-neutral interventions to prevent or address unlawful conduct or unsafe sexual practices; and (B) do not seek to change sexual orientation.
Change Number 2: It Is Not Limited To Minors
865.1. Under no circumstances shall a mental health provider engage in sexual orientation change efforts with a patient under 18 years of age.
“The following unfair methods of competition and unfair or deceptive acts or practices undertaken by any person in a transaction intended to result or that results in the sale or lease of goods or services to any consumer are unlawful:. . .(28) Advertising, offering to engage in, or engaging in sexual orientation change efforts with an individual
Change Number 3: “Transaction” is Much Broader Than You Think.
(a) “Goods” means tangible chattels [that basically means any item other than land] bought or leased for use primarily for personal, family, or household purposes, including certificates or coupons exchangeable for these goods, and including goods that, at the time of the sale or subsequently, are to be so affixed to real property as to become a part of real property, whether or not they are severable from the real property.
(b) “Services” means work, labor, and services for other than a commercial or business use, including services furnished in connection with the sale or repair of goods.
(c) “Person” means an individual, partnership, corporation, limited liability company, association, or other group, however organized.
(d) “Consumer” means an individual who seeks or acquires, by purchase or lease, any goods or services for personal, family, or household purposes.
(e) “Transaction” means an agreement between a consumer and another person, whether or not the agreement is a contract enforceable by action, and includes the making of, and the performance pursuant to, that agreement.
- A “transaction” is an agreement between a “consumer” and another person. It’s everything from “You give me $5,000, and I’ll give you this car” to “Let’s meet for coffee to talk. If you come, I’ll buy the coffee.” You give coffee, they give their time and whatever gas they burned in getting there.
- A “person” is an individual, corporation, or any other group however organized. That could be you, or anybody. That could be a church (Churches are almost always nonprofit corporations), and any other group however organized could be a private club. Only the courts will limit that.
- A “consumer” is an individual who acquires by purchase or lease, a “good” or “service.” So you’re not a consumer until you get something.
- A “good” is everything from a book to a Buick. So long as it is tangible, and not land (that’s called real property), it is a “good.”
- A “service” is something you do for someone. It’s like getting a haircut or painting a house.
And let’s once again remember what exactly is being banned in a transaction:
(i) (1) “Sexual orientation change efforts” means any practices that seek to change an individual’s sexual orientation. This includes efforts to change behaviors or gender expressions, or to eliminate or reduce sexual or romantic attractions or feelings toward individuals of the same sex.
What’s a “practice”? It’s not defined by the law. So a dictionary definition: “habitual or customary performance.”
What are “behaviors.” It’s not defined by the law. So a dictionary definition is all we have: “manner of behaving or acting.”
What are “gender expressions”? It means how you dress, how you present yourself, how you do your hair, and everything else.
This law bans individuals from regularly engaging in transactions that involve changing an individuals behavior or actions, which includes encouraging people to refrain from dressing as a gender they weren’t born with or to refrain from same-sex romantic or sexual actions.
- What if that comes in the form of a book? Not exempted, so banned.
- What if that comes in the form of a conference? Not exempted, so banned.
- What if you advertise for a conference that seeks to change people’s actions regarding their gender expression? Not exempted, so banned.
- What if my church is selling the book or putting on the conference. More on that later.
Activists Laws, Their Origins, and Confusing Justifications
As a slight detour, let’s talk about the state of affairs before the law was expanded. Let’s talk about “Conversion Therapy.” California already bans mental health providers from practicing “Conversion Therapy” on minors. This was done in a 2012 law passed as SB 1172.
I personally do not like how this law works for one simple reason: What if the patient wants it?
How bad is too bad?
In California, if somebody wants to refuse chemo treatment, that’s fine. The law says nothing. In California (like other places), if somebody wants to get a root canal with no painkillers, that’s fine. The law says nothing. In California, if someone wants their doctor to literally kill them because they don’t want to die a natural death by a serious disease, then that’s also fine (In Belgium, you can get the same thing for severe “mental illness,” including autism and bipolar disorder). If you want to surgically remove your genitalia, obtain breast implants, and get hormones to turn your body from a man to a woman, then that’s not only fine for adults, but fine for minors, too (at least in Oregon).
So with all that in mind, why is it so manifestly obvious that we MUST ban conversion therapy? If it actually doesn’t work, then it will run the course of leeching. People stopped bleeding people with leeches, not because a legislature banned it, but because we just stopped doing it because we realized it didn’t work . . . except in those rare cases that even today, we acknowledge it is useful.
Why is conversion therapy worse than leeching?
The Implications of Our Arguments
We’ve got to do better than “Conversion Therapy is bad because it hurts people.” Lots of things hurt people. Smoking is still legal. That hurts people. (And remember that it is also legal in certain circumstances for you to ask your doctor to literally kill you in California, and he can do it.)
What about “And it doesn’t work”? Okay. Let’s think about the implications of that argument.
If we say “Conversion Therapy doesn’t work,” we have to realize that what we really mean is “Conversion therapy doesn’t work YET.” We don’t even know what causes someone to be gay, so how could we have a medical treatment for “being gay”?
But imagine that we actually find what makes someone gay. Maybe they find the elusive “gay gene.” Maybe CRISPR allows us to change that gene. Maybe after more study, we can have some non-genetic treatment for whatever it is that makes men prefer men over women. “It doesn’t work” will no longer be true, yet “conversion therapy is bad” will still be the law. Why? What if somebody doesn’t want to be gay.
If a man can choose to be a woman (and get a doctor to help him with that), then why can’t a man choose to be straight (and get a doctor to help him with that)?
That doesn’t sound very good for science. It doesn’t sound very good for freedom either. But that’s because it’s not about science. It’s also not about freedom. It’s about ideology. More on that later.
Anti-Conversion Therapy Laws Are Bad For Freedom
One thing to note is that even if we never find the “gay gene,” anti-conversion therapy laws restrict freedom in bad ways.
Counter-intuitively, they have astonishingly narrow in their view of human sexuality, even on LGBT-friendly terms.
Example 1: A gay high school boy gets ridiculed for the way he talks, for the way he dresses, and for the way he acts. He goes to the school’s counselor, a person designated as a mental health professional. The counselor tells him that it’s bad that those people (some of whom aren’t even students) do that to him. She tells them to avoid them and be more confident in himself. She suggests strategies to do so. He says he can’t avoid those people (and . . . well, he actually can’t avoid them). He asks her to work on ways to change his behavior and to do whatever he can to “not be so gay.” It might not make it all go away, but it might make it a little more manageable.
Regardless of whether you think this is the right path for him, we need to acknowledge it is the method he has chosen to deal with his situation. Shouldn’t he be allowed to at least try it?
But with the current law, that school counselor is legally prohibited from helping him change his actions to “be less gay.”
Example 2: Imagine a bisexual female minor is in a relationship with a boy. She wants to plan long term with him. Even if it doesn’t end up being him, she wants her life-long partner to be a boy because yes, she does want to have kids and raise those kids with their own father, and no, she doesn’t want artificial insemination or weird family arrangements. She grew up with two stable parents and she wants to give her children two (and only two) stable parents. But since she is bisexual, she knows that she will have difficulty being a good girlfriend to her boyfriend (or wife to her future husband). She is seeking help with this
No therapist is allowed to provide a service which would help this bisexual female minor deal with this conundrum, because that would seek to change her “behavior” or “to eliminate or reduce sexual or romantic attractions or feelings toward individuals of the same sex,” even if that is precisely what she wants for her own long term benefit which she has freely chosen as a bisexual person.
While some may imagine that you can give help to this woman by by pointing to the 865(b)(2) caveat that therapies which “do not seek to change sexual orientation” are allowed, I’ll point you right back to 865(b)(1) section which defines the “changing of sexual orientation” as to include “efforts to change behaviors or gender expressions, or to eliminate or reduce sexual or romantic attractions or feelings toward individuals of the same sex.”
You can’t square that circle. Free choices of individuals are banned.
The Oppressors Must Always Lose (And We Must Always Be The Ones Who Decide Who the Oppressors Are).
You know what’s funny about these examples? If the gay high school student wanted to go to a counselor to “explore his sexual identity” and — who knows? — maybe even become MORE gay, that would be allowed. If the bisexual female wanted to be a better and more exclusive partner to her GIRLFRIEND or WIFE, rather than her boyfriend or husband, then that would be allowed.
Funny how that works:
- When a therapist seeks to change behaviors or gender expressions, or to eliminate or reduce sexual or romantic attractions or feelings toward individuals of the same sex, then that’s an evil sexual orientation change efforts.
- But if a therapist is dealing with someone who is bisexual or someone who is gay, when they “support” a bisexual person in their feelings towards someone of the same sex, or if they help a minors with their “identity exploration and development” that leads to actually announcing that you’re gay, then that’s NOT an evil sexual orientation change effort.
Don’t take my word for it. Read the law for yourself (again). (I would also like to ask what the difference is between “identity development” which is explicitly allowed and “gender expression change” which is explicitly forbidden, but I don’t want to be sent off to mandatory sensitivity training, so I’ll just keep to myself.)
These laws are unique. They are activist. These laws are not the result of normal medical governance (because seriously, when was the last time that a medical board went outside the medical board’s own governance powers and went straight to the legislature for a policy change?). They’re not even coherently written. That’s because these laws are ideological, and based on a neo-marxist oppressor vs. oppressed political worldview, with self-appointed activists playing the role of revolutionary, compassionately protecting those oppressed by conversion therapy, whether or not this protection is actually good or not.
Now let’s get back to the new law.
Practically Speaking, How Bad Could It Get?
Even More Limited Freedom
Real World Application For a Church Selling Books
- If your church is a non-profit, then your church is a corporation. That makes you a “person” capable of violating this civil law.
- If an individual pays $10 for a book, then that person is a “consumer.”
- If a person buys the book, that book is a “good.”
- The sale of that good is a “transaction.”
- Your sign over the books is an “advertisement.”
- And Rosaria Butterfield is a person who converted to Christianity, and in doing so left a long-term lesbian relationship. She is not in favor of calling individuals (like herself) “gay Christians,” because she does not believe that “being gay” is a “morally neutral physical reality.”*
- Not only has the church “advertised” a book that documents what could easily be construed as a “sexual orientation change,” but the message on the sign could easily construed by a judge or a jury as an “effort to change behaviors or gender expressions, or to eliminate or reduce sexual or romantic attractions or feelings toward individuals of the same sex.” That is a prohibited “Sexual Orientation Change Effort,” made unlawful by AB 2943.
(a) Any consumer who suffers any damage as a result of the use or employment by any person of a method, act, or practice declared to be unlawful by Section 1770 may bring an action against that person to recover or obtain any of the following:(1) Actual damages, but in no case shall the total award of damages in a class action be less than one thousand dollars ($1,000).
(2) An order enjoining the methods, acts, or practices.
(3) Restitution of property.
(4) Punitive damages.
(5) Any other relief that the court deems proper.
The Most Dangerous Part of This Law
My Practical Experience
What Do The Bill’s Supporters Say?
This does not impact with respect to freedom of speech or freedom of religion. This is very narrow in scope, under the consumer legal remedies act, which is that of a financial transaction. So if you are in a church, and would still like to preach whatever the beliefs might be, that is still legal and allowed under the law. But one cannot be advertised with a transaction to make a profit* this notion that you can be changed with respect to sexual orientation and sexual identity. So to be very clear, this is very narrow in scope under this consumer legal remedies act, which is that of a consumer transaction.** You can still talk about the beliefs of whatever the freedom of religion might be [sic] and… that is still possible — In fact, it is still possible. . . within the confines of a church to talk about — that they can change you, so long as there is not a financial transaction.
I will just say this is a practice that has long been discredited. Nobody goes to a professional therapist who thinks they’re going to get changed from their sexual orientation. This is fraudulent, this should not be occurring. It is damaging to people. And for those who are still worried about their First Amendment rights, you can still try to pray the gay away! …if you’d like.
As a former prosecuting attorney with the Attorney General’s Consumer Rights section, and as a prosecutor of the Consumer Legal Remedies Act in particular, I want to make it absolutely clear that the First Amendment does not prohibit banning fraudulent conduct. The faith community like anyone else needs to evolve with the times. The science is clear. . . the claim that the First Amendment can be used as a defense for promoting fraudulent conduct is a fallacious argument.