California’s AB 2943 Is Even Worse Than They Say It Is

“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:

 

SB 1172:

(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.

AB 2943:

(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.
Did you notice the difference? They took out “mental health provider” (and no, “psychotherapy” is not a term defined by the law that limits it to psychiatrists or psychologists).
It is also moved from the specialized “Business  and Professions” section of the California Code to the general “Civil Code” section of the California Code. This means the regulation does not apply only to regulated industries like medicine or law, but to anyone. They have changed the law to apply to everyone, including you.
Now, before we get ahead of ourselves, we haven’t gotten to the definitions of:
1.) who is liable under this law, or
2.) who can be a “victim” under this law, and
3.) what the scope of the application is.
But we do have a definition of what the bad action is, and it is BROAD. Wildly broad. It literally applies to everyone, not just those governed by the medical board. It is part of the general Civil Code

Change Number 2: It Is Not Limited To Minors

When doing a word search through AB 2943, something is missing: “under the age of 18.”
That was there in SB 1172 which said in its prohibitive clause:

865.1. Under no circumstances shall a mental health provider engage in sexual orientation change efforts with a patient under 18 years of age.

In AB 2943, this limitation is taken out. Before, conversion therapy was illegal for therapists to provide to minors — even if the parents wanted it and even if the minor wanted it, too. Now conversion therapy is banned even for adults who want it.
The prohibitive clause of SB 2943 amends the Civil Code in the Consumers Legal Remedies Act, which would be amended to read at 1770(a)(28):
“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
 Wow. We’ve dropped the idea that we need to “protect children.” Now we are “protecting” everybody. Why?

Change Number 3: “Transaction” is Much Broader Than You Think.

Now, this is in the California-version of a Consumer Protection Act. You might think that a law designed to protect consumers from evil corporations would never apply to individual private citizens or small mom and pop stores or churches.
These are all reasonable assumptions, but as an attorney, let me tell you that you should never assume that a reasonable assumption is put into the law until you can actually read it in the law, and confirm the legal definition of every word in the sentence you’re reading, not just the dictionary definition.
For this reason, we need to look at the bill and law’s definition of “transaction,” “goods,” “services,” “person,” and “consumer.” This exists in Section 1761 of the California Civil Code. I’ve put the entire text, but put the most pertinent parts in bold:

(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.

So let’s collect all of our definitions in one place:
  •  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.
 Wow. That’s just as bad as they’re saying it is.

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.

Don’t take my word for it. Read the law yourself.

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?

Pretty Darn Bad, but let’s start with the relatively minor inconveniences.

Even More Limited Freedom

First off, remember that example of the ridiculed gay guy? Okay. Now let’s pretend he’s not in high school, but instead, he’s an adult who is gay, and who exhibits all the characteristics typically associated with being gay. He has a corporate job in their public relations department. It is now illegal for him to receive coaching to change his behavior to become “less gay” for his own benefit in his career. He might seek it, but even offering it (even if he wants it) is a “deceptive practice” that is banned.
Remember the bisexual female high school student? Now let’s pretend we have a 35 year old mother of 3 who is bisexual, has always been bisexual, but is married to a man. She and her husband have recently been having marriage troubles, and has struggled with websites that allow for sexual hookups. She knows this is wrong and needs help from her psychologist to refrain. This is illegal for her therapist to do.
It was bad enough when we were limiting the choices of coherent minors. Now why do we take it upon ourselves to limit the choices of coherent adults?

Real World Application For a Church Selling Books

You belong to a church. Your church sells books. Two of those books are by Rosaria Butterfield. The first is The Gospel Comes with a House Key: Practicing Radically Ordinary Hospitality in Our Post-Christian World, and the second is The Secret Thoughts of an Unlikely Convert: An English Professor’s Journey into Christian Faith. Over these two books is a sign that says “We believe that a difficult journey to find your true identity, a hopeful life, and your place in this world and in this church can be found with examples like Rosaria Butterfield. $10.” Though the books normally cost $20, your church bookstore gets a nice non-profit discount of $15, and sells them for $10.
Legal question: AB 2943 is now law. Your church is in California. Is your church in any sort of danger? 
Legal Answer: Yes. You meet every element of a violation of AB 2943. Let’s break it down:
  1. If your church is a non-profit, then your church is a corporation. That makes you a “person” capable of violating this civil law.
  2. If an individual pays $10 for a book, then that person is a “consumer.”
  3. If a person buys the book, that book is a “good.”
  4. The sale of that good is a “transaction.”
  5. Your sign over the books is an “advertisement.”
  6. 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.”*
  7. 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.
*(If those selective facts offend you, realize that Rosaria Butterfield believes many other things, too. I would encourage you to watch and read much more about her. But let’s be realistic and realize that a civil complaint is not going to mention much more than those few headlines.)   
  This is a “deceptive act” for which your church is liable. Your church is a lawbreaker.
How liable? Very Liable. See Section 1780:

(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.

Applied to our situation, we could go down the list:
First, all actual damages are damages. That’s the $10 for the book.
Second, because the court can issue an injunction, you may be ordered by the court to take down the sign. Or in other words, change your speech inside your church.
Third, this is another way to get the $10.
Fourth, you can be liable for punitive damages, which is limited by little else but the judge or jury’s whim.
Fifth, people could be forced to go to some “sensitivity training” if the court deems it proper.
And let’s ask this: How many people has your church sold the book to? Depending on the answer, you might find yourself in a class action. That’s $1,000 at minimum, and you’re probably going to need an attorney, and we cost way more than $15 a book.
Finally to add injury to insult, if your church loses, your church is liable for something else: the court costs AND attorney fees of the plaintiff. So even if the damages are only $10, you may find yourself paying $10,000 in both your and the plaintiff’s for attorney’s fees, and that’s on the cheap!
And though I picked the Rosaria Butterfield book for my example, realize that it doesn’t have to be that book. There’s nothing special about her or her book, and it could be any book as David French — a graduate of Harvard Law School, I might add — pointed out at National ReviewIf a book could be construed as part of an effort to change behaviors related to sexual orientation or gender identity could play the same role. That’s why — even though it’s not perfectly cut and dry in every circumstance — people aren’t exactly crazy when they say that this law could be used to ban Bible sales.

The Most Dangerous Part of This Law

Some people like Ben Shapiro, have claimed that it is absolutely crazy that a law is passed that will allow the California Attorney General to sue churches for selling books. He could do this if they only advocate “changing behaviors” regarding sexual orientation. Yes, that is crazy, but that’s not the craziest part of this law.
The craziest part of this law is that ANYBODY can sue under this law for selling books that advocate changing behavior. It’s not just the Attorney General. This is a GENERAL CAUSE OF ACTION under the California Civil Code. It is not, as the previous law was, under the Business and Professions Code.
Think about that for a minute…   …anyone.
You might win your court case, but if you’re in court (especially against plaintiffs with nationwide movements and legal societies behind them), you’ve already lost.

My Practical Experience

I am an attorney who has litigated with the Virginia Consumer Protection Act. As a comparison, the Virginia act seems to be slightly less broad that California’s Consumer protection act, because the intent of the Virginia Consumer Protection Act is “remedial legislation to promote fair and ethical standards of dealings between suppliers and the consuming public.”
Meanwhile the Consumers Legal Remedies Actshall be liberally construed and applied to promote its underlying purposes, which are to protect consumers against unfair and deceptive business practices and to provide efficient and economical procedures to secure such protection.” It’s important to note that there is no explicit legal language which separates “non-profit businesses” (like churches or other religious entities) from “businesses” who have deceptive “practices.”
And if it’s ambiguous about whether the writers of this law wanted it applied against churches, then it will go to the legislative history of AB 2943. The bill says nothing about churches, but does say in its findings at (q) that “California has a compelling interest in protecting the physical and psychological well-being of lesbian, gay, bisexual, and transgender individuals.” It says nothing about the freedom of speech or the freedom of religion.

What Do The Bill’s Supporters Say?

And you might also think this is all an unfair characterization. You may think that the California lawmakers didn’t intend such a thing. You may not think they’re malicious or spiteful (more on that below). You may think they never meant to override the First Amendment or anything like that. That may be true.
But this matters very little. The “intent” of a large group of people is something that is hard to understand. The individual politicians may have nice motives, and may voice those nice motives when they advocate for a law, but what about the motives of others who might benefit from the law? What about activists like the Human Rights Campaign (HRC), like the Gay & Lesbian Advocates & Defenders (GLAD), and the Lambda Legal Defense and Education Fund? How confident are we that these organizations that support anti-conversion therapy legislation have a neutral disposition towards religious free exercise?
Well, some of those questions are very hard, but it is quite easy to see what individual politicians are saying. Despite what I have written above, the Author of the bill, Assembyman Evan Low claimed in his floor debate that AB 2943 does “one thing and one thing only” which is to “codify existing court decisions and clarifies that California’s consumer fraud laws bar the long discredited practice of conversion therapy.”
And already we can see misleading dishonesty poking through. To “codify” a court decision is to take a rule from a court decision and make it a law, usually to give more predictability by guaranteeing that a well-liked rule is not in danger of subsumed by new precedent. But existing California court decisions DO NOT say that consumer fraud laws ban conversion therapy. Instead, according to this one cite I was able to find, a single New Jersey case provided relief under a New Jersey consumer fraud law for Conversion Therapy. Nobody has ever said that California’s consumer fraud laws bar conversion therapy. That’s why they’re passing the law.
As we have already explored, it is not true that this law has a “very narrow in scope.” But the Bill’s Author made even more unwitting admissions in response to a very easy and open-ended question about how this would affect the faith community. He assured everyone:
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. 
*Note: Nothing in the California Legal Remidies Act that requires a “profit” for a transaction to be a transaction. 
** Remember that a consumer transaction is any exchange between a “person,” which is an individual, church, group, club, whatever, and another individual who acquires something by purchase.
How comforting it is for us Christians to learn that it is still legal to practice our religion… ahem… “within the confines of our church.” Good thing our faith doesn’t have anything to do with books. Apparently Assemblyman Evan Low has never heard of a Church Bookstore. Or a Christian Bookstore. Or Amazon.
Also, how comforting it was when Assemblywoman Eggman rose in support of the bill and assured us:
Good. I’m glad that the First Amendment has been reduced to “pray.” But it’s somewhat disturbing that she ignores the “behaviors” text of the bill, and the fact that this bill applies not only to licensed practitioners, but to EVERYONE.
How comforting it is that Assemblyman Muratsuchi assured us that:
Cool, cool. So . . . as opposed to the Author of the bill who claimed that the First Amendment is not broken by this bill, we now learn that there is no protection here from the First Amendment. Cool. I’m glad that disingenuous assurance lasted all of 12 minutes on the Assembly floor.
So yes, this bill is not as bad as people are saying it is. It is much much worse. The text is atrocious, and the supporters of the bill range from downright ignorant or misleading about what it says to openly mocking about “praying the gay away.”
But don’t worry. It’s only a problem if an LGBT rights zealot walks through your church door and is looking to cause you trouble.

Conclusion: Yes. This Is a Big Deal. And It’s Already Happening.

And if you need any more proof, I’d like to share with you that the effects of this bill are already playing out.
After all, tickets to these conventions (which go for around $100 a head) are “transactions” between “consumers” and “persons,” and they regularly advocate for a Biblical view of sexuality and marriage which often does not allow for gay sexual activity or gay marriage, and does not comportwith modern trends in trans rights. Now they are literally fleeing the state to protect their free exercise of religion and their freedom of speech.  You can find their full press release here.
And if you think that this is going to get struck down, at court, remember that this is a hard thing to do, as California does not have a RFRA.
So… …good luck, California. Send me a postcard from the political re-education gulag. I’ll probably be joining you soon enough.

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