Conversion therapy just suffered another blow, once again courtesy of the Federal Court of Appeals for the Ninth Circuit. I agree with the result of this latest decision that upheld the California conversion therapy law prohibiting licensed mental health providers from engaging in “sexual orientation change efforts” for minors against a challenge under the First Amendment’s free exercise and establishment clauses. This decision also provides an opportunity to think more broadly about giving professional advice, and in particular the knowledge upon which professionals should base their advice.
You may recall that not too long ago, the Ninth Circuit upheld the California conversion therapy law against a challenge based on the First Amendment’s free speech clause, and the Supreme Court refused to review that decision. Back then, I also agreed with the result the Ninth Circuit reached, but I suggested that we should be highly skeptical of state interference with professional insights. Professional speech should be protected by the First Amendment against laws that contradict the advice a professional would give to a client based on the insights of the profession. The reason I agreed with the outcome in the conversion therapy case is that the law reflects the insights of the profession: conversion therapy has been thoroughly discredited.
The state should not be allowed to tell professionals what’s good or bad professional advice. The California conversion therapy law aligns with professional insights—so the court was right to uphold it. But there is a Florida case about doctors and guns where the exact opposite happened: the state legislature passed a law that says doctors can’t ask their patients about gun ownership as a matter of course—even though doctors say that as a professional matter it might be relevant. Three times in a row, based on different reasons each time, a three-judge panel of the Federal Court of Appeals for the Eleventh Circuit upheld the law. The court now heard the case en banc, so stay tuned. When the law codifies professional insights, the patient or client gets the information he needs. But when the law contradicts professional insights, the professional has to pass on as professional knowledge something that is not. As a result, patients or clients don’t receive the relevant professional knowledge they need to make a decision. And so state interference that forces professionals to give advice to their clients that is not based on professional knowledge should be unconstitutional under this First Amendment theory of professional speech. It should be up to the profession, not state legislators, to decide what’s good and what’s bad professional advice.
So professionals should base their advice on professional knowledge. But what happens if your advice-giving professional has a religious, political, or philosophical disagreement with their profession? Say your pharmacist believes that abortion is a grave moral wrong. Say he believes that some forms of birth control are abortifacients, and refuses to give advice on the availability of such drugs. Or your therapist believes that homosexuality is sinful and should be remedied by conversion therapy.
That brings us back to California and the new conversion therapy case the Ninth Circuit just decided. This time around, the question was whether things change when there is an underlying religious reason for engaging in conversion therapy. What if the licensed therapist is also a member of the clergy and wants to engage in conversion therapy for religious reasons?
The court’s answer is that the law doesn’t apply outside of the counselor-client relationship: “The law regulates the conduct of state-licensed mental health providers only; the conduct of all other persons, such as religious leaders not acting as state-licensed mental health providers, is unaffected.” Further, the court noted that “even the conduct of state-licensed mental health providers is regulated only within the confines of the counselor-client relationship; in all other areas of life, such as religious practices, the law simply does not apply.” So far, so good. The California law doesn’t prohibit conversion therapy as a religious practice provided by members of the clergy just like it doesn’t prohibit conversion therapy for adults. When the licensed professional acts as a mental health professional, the law applies. When he acts in another capacity, including a religious capacity, the law doesn’t apply.
But there is a larger point to be made, one that goes to the basis for giving professional advice. When a professional acts as a professional giving professional advice, the answer generally has to be that it’s the profession that decides what’s good professional advice. Professionals have a certain shared knowledge basis, and shared ways of knowing and reasoning. Their advice must be based on this knowledge basis and methodology to be valid. And clients and patients expect professionals, within the professional-client or doctor-patient relationship, to follow the rules and methodologies of their profession. The very reason the professional’s advice is valuable to them is that the professional has knowledge that they don’t have. And patients need accurate and comprehensive advice from their professionals to be able to make an informed decision. They expect their doctor to dispense advice based on medical science, even if the professional might personally disagree. Every other form of giving advice—for whatever reason and however well-meaning—would not amount to giving professional advice.