Much has been written in recent months about the California law enacted to place a ban on the use of “conversion therapy” as a pseudo-treatment to “change” the sexual orientation of gay people. The basis of the California law is the simple reality—one accepted by mainstream mental health professionals—that conversion therapy not only fails to work but that it is also denies the fundamental condition of sexual orientation, one that is established early in life and represents a normal part of human existence. The California law has been struck down—at least for now—by a court that has claimed the law violates the 1st amendment based free speech rights of therapists engaged in conversion therapy. Unfortunately, this position fails to take into account all the risks and potential harm of conversion therapy, a fact that would seem to ignore the fundamental role of informed consent in the creation of a professional relationship between mental client and provider. When the informed consent dialog fails to include a discussion of the risks of services, and, indeed, when the basic therapeutic approach is inherently at odds with the mental health stability of the client, this violation of informed consent would clearly seem to trump any consideration of the impact of the therapist’s free speech. Indeed, free speech has always been regarded as having its limits. For example, the act of defamation and the act of false advertising, among countless other examples, demonstrates that free speech can and must be regulated when the interests of the public are in peril. This conclusion is based on sound and conservative interpretations of constitutional law and the law of informed consent. Much more information about these important legal areas is provided on this website in the Constitutional Law and Informed Consent sections of this website. As always, your input on this issue is openly invited.
A story from today’s headlines reveals that a 16-year-old student has been banned by his Ohio school district from wearing a shirt with the insignia of a fish and the slogan “Jesus is Not a Homophobe.” The student’s explanation for wearing the shirt is quite simple: “I’ve been bullied and called names and I wanted to wear this shirt to promote respect for all students, gay or straight.” The student has sued to reverse the school district’s ruling. The legal aspects of this troubling decision are fairly easily analyzed by reference to this website’s discussion of the duty to the duty to treat clients with due process. The present case offers a rather clear example of the denial of a student’s fundamental 1st Amendment right to free speech as well as his 14th Amendment-protected right to privacy. The student has a patently reasonable explanation for wearing the shirt: He is a gay student who wants to make a basic political assertion. Under the doctrine of substantive due process, discussed in this website’s section on the Constitution, in order to justify impinging on this right the school must demonstrate a compelling state reason to do so. No doubt the district will attempt to defend its decision that the shirt is disruptive, violates restrictions on shirts with sexual content, and for related reasons. A review of this website’s discussion of substantive due process reveals that it would seem apparent no such justification is present for banning the written expression contained on the shirt. Anyone out there have an opinion on this case? Please share it!