A California law banning sexual orientation conversion therapy for youths under age 18 was left in place by a federal appeals court in San Francisco on Wednesday.
The full 9th U.S. Circuit Court of Appeals turned down a request by a group of counselors, parents and teenagers to have an 11-judge panel review an earlier decision in which a three-judge panel upheld the law.
The circuit court action means that the only remaining step open to the therapists and families challenging the 2012 law would be an appeal to the U.S. Supreme Court.
Mathew Staver, a lawyer for the plaintiffs, was not immediately available for comment on whether there will be an appeal to the high court.
Shannon Minter, an attorney who defended the law, said, “Today’s decision affirms that California can protect young people and their families from being deceived and harmed by unethical therapists who falsely claim they can change a person’s sexual orientation.”
“These practices have no scientific basis and can cause serious, lasting harms that devastate families and destroy young lives,” said Minter, who works with the National Center for Lesbian Rights in San Francisco.
The center represented Equality California, a gay rights organization that was allowed to join state Attorney General Kamala Harris as an official party defending the law.
The California law prohibiting “sexual orientation change efforts” for minors, sometimes known as gay conversion therapy, by state-licensed mental health providers was the first of its kind in the nation.
Last year, New Jersey adopted a similar law, which is currently being appealed in the 3rd U.S. Circuit Court of Appeals in Philadelphia.
The California law was challenged in two separate lawsuits filed in federal court in Sacramento, which were considered together by the 9th Circuit.
In the appeals court’s earlier ruling, a three-judge panel in August unanimously rejected the plaintiffs’ claim that the law violated mental health providers’ constitutional right of free speech.
The panel said the law regulated conduct rather than speech, did not violate parents’ rights and fell within the state’s authority to use its licensing power to protect the well-being of minors.
A vote by the appeals court on whether to grant reconsideration by an 11-judge panel, known as an en banc panel, in a case is referred to the full circuit court, which currently has 27 fulltime judges.
In today’s order denying an en banc hearing, three of the 27 judges said in a dissent that they favored granting the review.
Circuit Judge Diarmuid O’Scannlain wrote in the dissent that he believed the law regulated speech and should be judged under principles of constitutional First Amendment protection of free speech.
But he and his two colleagues said they were not taking a position at this point on whether the law is constitutional.
“The regulation at issue may very well constitute a valid exercise of California’s police power” even when reviewed under First Amendment standards, O’Scannlain wrote.
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