Court Rejects Anti-LGBTQ Groups’ Constitutional Challenges to Law
(Trenton, NJ, September 11, 2014)—Today, a panel of the United States Court of Appeals for the Third Circuit unanimously upheld a 2013 New Jersey law prohibiting licensed therapists from attempting to change the sexual orientation or gender expression or identity of patients under 18 years old. The Court held that the New Jersey law does not violate the First Amendment and that the State of New Jersey was entitled to prohibit these discredited practices in order to protect minors from harm. The United States Court of Appeals for the Ninth Circuit upheld a similar California law last year.
The New Jersey law prohibits licensed therapists from subjecting minor patients to “sexual orientation change efforts” (SOCE), which the law defines as the practice of seeking to change a person’s sexual orientation, including, but not limited to, efforts to change behaviors, gender identity, or gender expressions, or to reduce or eliminate sexual or romantic attractions or feelings toward a person of the same gender.”
Writing for the court, Circuit Judge D. Brooks Smith held that “over the last few decades a number of well-known, reputable professional and scientific organizations have publicly condemned the practice of SOCE, expressing serious concerns about its potential to inflict harm,” and that “[m]any such organizations have also concluded that there is no credible evidence that SOCE counseling is effective.”
The constitutionality of the New Jersey law was challenged in August 2013 in a lawsuit filed by anti-LGBTQ groups primarily representing therapists who engage in the prohibited practices. The case was assigned to federal district judge Freda Wolfson, who held that the law was a valid exercise of the state’s authority to regulate medical professionals to protect public health and safety. That ruling was appealed and heard by a three-judge panel of the Third Circuit in July 2014.
While applying a higher standard of review, the Third Circuit upheld Judge Wolfson’s judgment that the law is constitutional, stating: “Legislatures are entitled to rely on the empirical judgments of independent professional organizations that possess specialized knowledge and experience concerning the professional practice under review, particularly when this community has spoken with such urgency and solidarity on the subject.”
In the fall of 2013, Garden State Equality filed a successful motion to intervene in the lawsuit to defend the law alongside New Jersey Acting Attorney General John Jay Hoffman, who represents the State of New Jersey defendants. Garden State Equality is represented in the case by the National Center for Lesbian Rights (NCLR) and the law firms of Kirkland & Ellis LLP and Gluck Walrath LLP. David Flugman of Kirkland & Ellis argued the case on behalf of Garden State Equality.
“The court’s decision today is a major victory for the thousands of young people who will now be protected from these dangerous and horrific practices,” said Andrea Bowen, Garden State Equality’s executive director. “No one should subject minors to conversion therapy—least of all state-licensed clinicians responsible for the care and well-being of their patients.”
Shannon Minter, NCLR’s Legal Director, said “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. 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 LGBTQ 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, known as Assembly Bill A3371, had seventeen primary and co-sponsors in the Assembly and was signed into law by Governor Chris Christie on August 19, 2013. In the Governor’s Statement Upon Signing, Governor Christie noted the “critical health risks” posed by conversion therapy, including “depression, substance abuse, social withdrawal, decreased self-esteem and suicidal thoughts.”