Indiana Law Journal Indiana Law Journal
Volume 99 Issue 4 Article 7
2024
Botched Bans: Analyzing Conversion Therapy Bans After a Botched Bans: Analyzing Conversion Therapy Bans After a
Decade of Legal Challenges Decade of Legal Challenges
Cameron J. Rachford
Indiana University Maurer School of Law
Follow this and additional works at: https://www.repository.law.indiana.edu/ilj
Part of the Human Rights Law Commons, and the Sexuality and the Law Commons
Recommended Citation Recommended Citation
Rachford, Cameron J. (2024) "Botched Bans: Analyzing Conversion Therapy Bans After a Decade of Legal
Challenges,"
Indiana Law Journal
: Vol. 99: Iss. 4, Article 7.
Available at: https://www.repository.law.indiana.edu/ilj/vol99/iss4/7
This Note is brought to you for free and open access by
the Maurer Law Journals at Digital Repository @ Maurer
Law. It has been accepted for inclusion in Indiana Law
Journal by an authorized editor of Digital Repository @
Maurer Law. For more information, please contact
Botched Bans: Analyzing Conversion Therapy Bans After a
Decade of Legal Challenges
CAMERON J. RACHFORD*
Despite empirical evidence documenting its harms and substantial legislative efforts
to ban its practice, conversion therapy remains a tragically prevalent practice in the
United States. Recently, a circuit split between the Ninth and Eleventh Circuits has
developed, raising questions about the future of conversion therapy regulation. This
Note takes a retrospective look at the last ten years of conversion therapy bans and
related legal challenges, questions the effectiveness of enacted bans, and explores
routes for more effective regulation. This Note ultimately argues that conversion
therapy bans must shift their focus to the regulation of unlicensed practitioners in
order to better protect minors from the empirically demonstrated harms of
conversion therapy.
* J.D./M.S. Cybersecurity Risk Management Candidate, 2024, Indiana University
Maurer School of Law; B.A., 2020, Indiana University. I would like to thank my partner Kyle
for his unwavering support and long nights spent listening to me ramble about this Note.
Additionally, I would like to thank the LGBTQ+ Pro Bono Project at the Maurer School of
Law, whose advocacy work and research opportunities helped to inform the topic of my Note.
Finally, I would like to extend my gratitude to the Volume 99 team at the Indiana Law Journal,
who have all worked incredibly hard to prepare this Note for publication.
392239-ILJ 99-4_Text.indd 353392239-ILJ 99-4_Text.indd 353 5/29/24 10:56 AM5/29/24 10:56 AM
1404 INDIANA LAW JOURNAL [Vol. 99:1403
INTRODUCTION ..................................................................................................... 1404
I. WHAT IS CONVERSION THERAPY? .................................................................... 1407
A. TERMINOLOGY ....................................................................................... 1407
B. EMPIRICAL RESEARCH ON THE EFFICACY AND HARM OF CONVERSION
THERAPY ............................................................................................. 1409
1. LACKING EMPIRICAL EVIDENCE OF EFFICACY .............................. 1409
2. EVIDENCE OF HARM ...................................................................... 1410
II. THE UTILITY OF CURRENT BANS ..................................................................... 1411
A. FOCUS ON LICENSED PRACTITIONERS .................................................... 1411
B. RELIGIOUS EXCEPTIONS ......................................................................... 1413
C. JUSTIFYING THE NARROW SCOPE AND EXCEPTIONS .............................. 1414
III. CONVERSION THERAPY BANS IN THE COURTS ............................................... 1415
A. THE ORIGINAL CHALLENGES TO CONVERSION THERAPY BANS ............ 1415
B. THE RECENT CIRCUIT SPLIT ................................................................... 1416
IV. BUILDING A BETTER BAN: SHIFTING FOCUS TO UNLICENSED PRACTITIONERS .....
.................................................................................................................... 1418
A. THE FEASIBILITY OF A BLANKET BAN ................................................... 1418
1. A BLANKET BAN WHEN CONVERSION THERAPY IS CATEGORIZED AS
CONDUCT ..................................................................................... 1418
2. A BLANKET BAN WHEN CONVERSION THERAPY IS CATEGORIZED AS
SPEECH ......................................................................................... 1420
B. A BAN SOLELY FOCUSED ON UNLICENSED PRACTITIONERS .................. 1421
1. REGULATING UNLICENSED PRACTITIONERS VIA THE PROFESSIONAL
CONDUCT EXCEPTION .................................................................. 1421
2. REGULATING UNLICENSED PRACTITIONERS VIA A NEW CATEGORY OF
SPEECH ......................................................................................... 1423
C. RESILIENCY OF LICENSING REQUIREMENTS TO OTHER CHALLENGES .... 1425
1. SURVIVING LONE CHALLENGES .................................................... 1426
2. SURVIVING HYBRID RIGHTS CHALLENGES AND SIMILAR DOCTRINES
..................................................................................................... 1426
A. HYBRID RIGHTS BASED CHALLENGES .......................................... 1427
B. CHALLENGES IN JURISDICTIONS THAT HAVE OTHER HEIGHTENED
SCRUTINY DOCTRINES .................................................................. 1428
D. THE SUPPLEMENTAL POTENTIAL OF LICENSING BOARDS AND CONDUCT
STATUTES ............................................................................................ 1429
CONCLUSION ........................................................................................................ 1430
I
NTRODUCTION
In the United States, there has been pushback on the ideas underlying conversion
therapy since the early 1970s.
1
However, even as LGBTQ+ people have become
1. See Jack Drescher, Out of DSM: Depathologizing Homosexuality, 5 BEHAV. SCIS.
565, 565 (2015) (noting how the Administrative Procedure Act (APA) removed
homosexuality from the DSM in 1973, eschewing ideas of a pathological understanding of
homosexuality).
392239-ILJ 99-4_Text.indd 354392239-ILJ 99-4_Text.indd 354 5/29/24 10:56 AM5/29/24 10:56 AM
2024] BOTCHED BANS 1405
more widely accepted in mainstream culture in the United States,
2
conversion
therapy has remained a bastion for quacks and religious extremists.
3
Indeed, even a
cursory Google search will reveal a bounty of unlicensed individuals and ministry
programs that levy a similar array of conversion therapy techniques against perfectly
normal children and adults.
4
Accordingly, in the past decade, we have seen a flurry of legislative activity
against conversion therapy for minors, with twenty-two states and the District of
Columbia passing bans that prevent licensed practitioners from engaging in the
practice.
5
Likewise, there has been a corresponding rise in legal scholarship on the
topic as challenges to conversion therapy bans have been raised over the past several
years. However, many academic discussions are so focused on the trees that they
ignore the forest. Specifically, legal researchers are often so caught up in the
challenges to professional-focused legislation that they fail to question whether the
underlying attempts at regulation are meeting their legislative purposes.
6
Notably, one legal scholar who has questioned the effectiveness of conversion
therapy bans is Marie-Amélie George, who identified a social trendsetting effect that
surpassed the direct effectiveness of professional-focused bans in a 2017 article.
7
That is, George argued that more so than for direct effects, conversion therapy bans
were used to “undermine conversion therapy as a whole” by framing it as something
illegal.
8
However, in the past several years the increase in anti-LGBTQ+
mobilization
9
calls the viability of primarily trendsetting legislation into question.
2. Acceptance of LGBTQ+ people has increased steadily in the United States since the
1980s. See A
NDREW R. FLORES, SOCIAL ACCEPTANCE OF LGBTI PEOPLE IN 175 COUNTRIES
AND
LOCATIONS 1981 TO 2020 46 (2021), https://williamsinstitute.law.ucla.edu/wp-
content/uploads/Global-Acceptance-Index-LGBTI-Nov-2021.pdf [https://perma.cc/WD2H-
3AKH].
3. U
NITED NATIONS INDEP. EXPERT ON PROT. AGAINST VIOLENCE & DISCRIMINATION
BASED ON SEXUAL ORIENTATION & GENDER IDENTITY, REPORT ON CONVERSION THERAPY 1
(2020) (noting that modern conversion therapy is frequently promoted by religious authorities
and those seeking to gain financially from the practice).
4. See infra note 14 and accompanying text.
5. See Equality Maps: Conversion “Therapy” Laws, M
OVEMENT ADVANCEMENT
PROJECT, https://www.lgbtmap.org/equality-maps/conversion_therapy
[https://perma.cc/2H3D-NSQC] (Feb. 22, 2024).
6. The vast majority of academic legal literature on conversion therapy bans focuses on
working around the First Amendment challenges to legislation that regulates the practice of
conversion therapy by licensed professionals. See, e.g., Kathleen Stoughton, Toxic Therapy:
Examining the Constitutionality of Conversion Therapy Bans in Light of Otto, 30 A
M. U. J.
GENDER, SOC. POL’Y & L. 81 (2022).
7. See Marie-Amélie George, Expressive Ends: Understanding Conversion Therapy
Bans, 68 A
LA. L. REV. 793, 825 (2017).
8. Id. at 825–26.
9. Currently, anti-LGBTQ+ mobilization in the United States is at its highest level since
2020, with a twelve-fold increase in anti-LGBTQ+ incidents since 2020. Sam Jones &
Roudabeh Kishi, Fact Sheet: Anti-LGBT+ Mobilization on the Rise in the United States,
ACLED (Nov. 23, 2022), https://acleddata.com/2022/11/23/update-fact-sheet-anti-lgbt-
mobilization-in-the-united-states/ [https://perma.cc/6Q2D-QZ7A]. These recorded incidents
include instances of political violence and political demonstrations. Id.
392239-ILJ 99-4_Text.indd 355392239-ILJ 99-4_Text.indd 355 5/29/24 10:56 AM5/29/24 10:56 AM
1406 INDIANA LAW JOURNAL [Vol. 99:1403
While it may have been a more acceptable solution for LGBTQ+ legislation to have
fewer practical effects in 2017, the recent, massive uptick in anti-LGBTQ+
sentiments in the United States
10
requires that legislation do more than mere
trendsetting. Indeed, these sentiments have boiled over so much that the U.S.
Department of Homeland Security had to issue an advisory bulletin about potential
terrorist threats targeting the LGBTQ+ community in 2022.
11
Furthermore, while there has been a suggestion that traditional and specialized
consumer fraud laws could complement bans targeting licensed professionals,
12
such
an approach has the potential to be circumvented by savvy conversion therapy
providers. This is imaginable even under a conversion-therapy-specific Illinois fraud
law which prohibits representing “homosexuality as a mental disease, disorder, or
illness” in “any trade or commerce.”
13
It is conceivable that even under these laws,
conversion therapy providers could simply operate on a “free, recommended
donation” basis and disguise their beliefs on what homosexuality is. After all,
conversion therapy providers have already shown a willingness to disguise
conversion therapy as “reparative therapy” in the past.
14
This Note examines the effectiveness of conversion therapy bans after a decade
of legal challenges that culminated in a September 2022 circuit split. Section I begins
by defining conversion therapy and discussing the practice’s efficacy and risk of
harm. Section II analyzes the features of conversion therapy bans, ultimately
concluding that they are doing the most work for the least reward. Section III
discusses the long history of conversion therapy in the courts, highlighting both the
original doctrine applied and the recent circuit split that has arisen. With the flaws in
current bans exposed, Section IV examines potential solutions to legislative
shortcomings. This Note ultimately proposes that a new legislative approach is
needed, relying on reasoning in a recent Ninth Circuit opinion. That is, future
conversion therapy bans should be changed to target unlicensed individuals rather
than those who are licensed. While the success of a blanket conversion therapy ban
is dubious, legislators could impose a licensing requirement that would prevent the
vast majority of conversion therapy from occurring. While this shift in focus would
10. See Kelsey Butler, Anti-LGBTQ Proposals Are Flooding U.S. State Legislatures at a
Record Pace, B
LOOMBERG (April 8, 2022, 8:00 AM),
https://www.bloomberg.com/news/articles/2022-04-08/mapping-the-anti-lgbtq-proposals-
flooding-u-s-state-legislatures?leadSource=uverify%20wall [https://perma.cc/843K-KCH9]
(noting a spike in anti-LGBTQ+ legislation proposals); see also Matt Lavietes, Biden Warns
of ‘Rising Hate and Violence’ Against LGBTQ People, NBC (May 17, 2022, 11:47 AM),
https://www.nbcnews.com/nbc-out/out-politics-and-policy/biden-warns-rising-hate-
violence-lgbtq-people-rcna29184 [https://perma.cc/6WZ8-9MRF].
11. This advisory was released after a shooting at a Colorado LGBTQ+ bar. U.S.
DEP’T
OF
HOMELAND SEC., SUMMARY OF THE TERRORISM THREAT TO THE UNITED STATES (2022).
12. John J. Lapin, The Legal Status of Conversion Therapy, 22 G
EO. J. GENDER & L. 251,
269–72 (2021).
13. Youth Mental Health Protection Act, Pub. Act 99-0411, 2015 Ill. Laws 5773, 5777.
14. See Joseph Nicolosi, What is Reparative Therapy?™ Examining the Controversy,
J
OSEPH NICOLOSI PH.D, https://www.josephnicolosi.com/what-is-reparative-therapy-exa/
[https://perma.cc/6TTB-F4ZN]; The Lies and Dangers of Efforts to Change Sexual
Orientation or Gender Identity, H
UM. RTS. CAMPAIGN, https://www.hrc.org/resources/the-
lies-and-dangers-of-reparative-therapy [https://perma.cc/7F5Z-X9RP].
392239-ILJ 99-4_Text.indd 356392239-ILJ 99-4_Text.indd 356 5/29/24 10:56 AM5/29/24 10:56 AM
2024] BOTCHED BANS 1407
inherently not prohibit licensed practitioners from the practice of conversion therapy,
broader, already-extant conduct and licensing rules would theoretically prevent these
licensed individuals from practicing therapies that have been found to have risks of
harm and no empirical value.
I.
WHAT IS CONVERSION THERAPY?
This Section provides background on conversion therapy by first defining the
practice and then discussing the current consensus on conversion therapy practices
in the United States based on professional standards and empirical evidence.
A. Terminology
The practice popularly known today as “conversion therapy” has gone by a
number of different names and definitions depending on the time period and group
using it. Outside of everyday language, conversion therapy primarily goes by two
names: sexual orientation and gender identity change efforts (SOGICE)
15
and
Reparative Therapy.
16
SOGICE is primarily used as an academic term to refer to the
broad array of conversion therapy efforts used,
17
while reparative therapy is a term
traditionally used by conversion therapy practitioners to market their services.
18
While those who conduct reparative therapy distinguish its goals and approach from
mainstream conversion therapy, many mainstream professional organizations see the
two as virtually indistinguishable.
19
Most recently, a new type of conversion therapy known as Gender Exploratory
Therapy (GET) has emerged.
20
This method seeks to implement a system of talk-
15. Anna Forsythe, Casey Pick, Gabriel Tremblay, Shreena Malaviya, Amy Green &
Karen Sandman, Humanistic and Economic Burden of Conversion Therapy Among LGBTQ
Youths in the United States, 176 JAMA
PEDIATRICS 493, 493 (2022) (using the term SOGICE
to refer to conversion therapy practices).
16. See A
M. COUNSELING ASS’N, RESOLUTION ON REPARATIVE THERAPY/CONVERSION
THERAPY/SEXUAL ORIENTATION CHANGE EFFORTS (SOCE) AS A SIGNIFICANT AND SERIOUS
VIOLATION OF THE ACA CODE OF ETHICS (Dec. 19, 2017),
https://www.counseling.org/docs/default-source/resolutions/reparative-therapy-resoltution-
letter--final.pdf?sfvrsn=d7ad512c_4 [https://perma.cc/QY7B-XWS8] (referring to conversion
therapy as interchangeable with the term reparative therapy).
17. See, e.g., Jessica N. Fish & Stephen T. Russell, Sexual Orientation and Gender
Identity Change Efforts are Unethical and Harmful, 110 A
M. J. PUB. HEALTH 1113, 1113
(2020).
18. “Reparative therapy” is a term coined by conversion therapy advocate Joseph
Nicolosi. See Nicolosi, supra note 14.
19. Compare Conversion Therapy, A
M. ACAD. OF CHILD & ADOLESCENT PSYCHIATRY
(Feb. 2018),
https://www.aacap.org/aacap/Policy_Statements/2018/Conversion_Therapy.aspx
[https://perma.cc/CF6N-H9CK], with Dr. Nicolosi’s Beliefs, J
OSEPH NICOLOSI PH.D,
https://www.josephnicolosi.com/ [https://perma.cc/E2Z4-4CNP] (“Reparative therapy is not
the same as ‘conversion therapy.’”)
(emphasis omitted).
20. Gender exploratory therapy organizations claim to offer a more ideologically neutral
approach to therapy. See About Therapy First, T
HERAPY FIRST,
392239-ILJ 99-4_Text.indd 357392239-ILJ 99-4_Text.indd 357 5/29/24 10:56 AM5/29/24 10:56 AM
1408 INDIANA LAW JOURNAL [Vol. 99:1403
therapy that delays access to gender affirming care and medical treatments by first
requiring patients to endure a mandatory “exploration” period where “[g]ender
dysphoria and self-identification as trans are approached with suspicion.”
21
Gender
exploratory therapy has even recently made its way into anti-LGBTQ+ legislation in
the United States with an Ohio State Representative proposing a bill that would force
healthcare providers to follow burdensome reporting requirements that ultimately
delay gender affirming care and “seek to blame being trans on anything other than
the youth actually being transgender.”
22
For the sake of brevity and avoiding jargon, this Note will simply use the term
“conversion therapy.” Unless otherwise stated, this Note will define conversion
therapy according to its Washington statutory definition as “a regime that seeks to
change an individual’s sexual orientation or gender identity. . . . [including] efforts
to change behaviors or gender expressions, or to eliminate or reduce sexual or
romantic attractions or feelings toward individuals of the same sex.”
23
Key to this
definition is the word “regime.” To be deemed conversion therapy for the purposes
of this Note, there must be evidence of a systematic or organized approach. Factors
indicating the existence of such an approach may include the use of conversion
ideology, the existence of a strong power imbalance between parties, and the
repetitive nature of interactions.
24
Additionally, although conversion therapy can be administered to people of any
age, reference to conversion therapy bans in this Note, proposed or already
https://www.therapyfirst.org/about/ [https://perma.cc/R8Z3-P9NU] (criticizing both
practitioners of standard gender affirming therapy, as well as practitioners who follow the
traditional conversion therapy assumption that identifying as transgender is wrong). Recently
a transgender watchdog group reported that training on gender exploratory therapy occurred
in the UK and materials presented during the training included references to other conversion
therapy advocacy groups. See Mallory Moore, NHS Trust Uses "Gender Exploratory"
Training Materials Promoting Conversion Therapy Lobbyists, T
RANS SAFETY NETWORK
(Dec. 20, 2022), https://transsafety.network/posts/gender-exploratory-nhs-training/
[https://perma.cc/BTP9-UNV4].
21. Florence Ashley, Interrogating Gender-Exploratory Therapy, 18 P
ERSPS. ON PSYCH.
SCI., 472, 472 (2023).
22. Erin Reed, Ohio Rep. Pushes Conversion Therapy; Bill Mandates it for Trans Kids,
L.A.
BLADE (May 29, 2023), https://www.losangelesblade.com/2023/05/29/ohio-rep-pushes-
conversion-therapy-bill-mandates-it-for-trans-kids/ [https://perma.cc/3P6F-L5LH].
23. Act of Mar. 28, 2018, ch. 300, sec. 3, § 18.130.120, 2018 W
ASH. SESS. LAWS 2437,
2437 (codified as amended at W
ASH. REV. CODE § 18.130.020(4)(a)) [hereinafter Washington
Ban]. This statutory definition was chosen because it is a precise legal definition that
encompasses the definitions used by many advocacy groups. See, e.g., U
NITED NATIONS INDEP.
EXPERT ON PROT. AGAINST VIOLENCE & DISCRIMINATION BASED ON SEXUAL ORIENTATION &
GENDER IDENTITY, supra note 3, at 1 (“‘Conversion therapy’ is used as an umbrella term to
describe interventions of a wide-ranging nature, all of which have in common the belief that
a person’s sexual orientation or gender identity (SOGI) can and should be changed.”).
24. These factors are drawn from a synthesis of common themes throughout Australian
conversion therapy efforts. See S
EXUAL ORIENTATION & GENDER IDENTITY CHANGE EFFORTS
SURVIVORS, 4 SOGICE SURVIVOR STATEMENT (2020),
https://www.sogicesurvivors.com.au/wp-content/uploads/2020/12/Survivor-Statement-A4-
Doc-v1-2-Digital.pdf [https://perma.cc/GGB2-3QU9].
392239-ILJ 99-4_Text.indd 358392239-ILJ 99-4_Text.indd 358 5/29/24 10:56 AM5/29/24 10:56 AM
2024] BOTCHED BANS 1409
implemented, should be read with the understanding that these bans only apply to
practicing conversion therapy on minors.
25
With the terminology of conversion
therapy established, this Note will explore the efficacy of conversion therapy.
B. Empirical Research on the Efficacy and Harm of Conversion Therapy
Over the past fifty years, there have been a number of studies examining the
efficacy of conversion therapy and the risk of harm to those subjected to it. These
studies are of particular importance because courts have routinely examined the
evidence of efficacy and harm when assessing conversion therapy bans.
26
As
demonstrated below, evidence of conversion therapy’s efficacy is lacking, while
evidence of its harm is becoming more abundant.
1. Lacking Empirical Evidence of Efficacy
Much of the evidence demonstrating the efficacy of conversion therapy has been
criticized and even retracted by publishers in the past two decades.
27
Notably, in
2012, the well-known psychiatrist Robert L. Spitzer issued a formal apology for
authoring a 2003 study that made “unproven claims of the efficacy of reparative
therapy.”
28
Similarly, in 2019, a study claiming to demonstrate that conversion
therapy decreased suicidality and promoted heterosexual shifts in behavior was
retracted by its publishing journal after a number of methodological issues were
found.
29
While these individual decisions about the empirical value of individual studies
provide some insight, comprehensive approaches to literature further emphasize that
there is no credible evidence of conversion therapy’s efficacy. Indeed, after a 2009
review of conversion-therapy-focused literature published between 1960 and 2008,
25. All current conversion therapy bans in the United States only ban the practice of
conversion therapy on minors. See, e.g., Washington Ban, supra note 23, at 2437; Youth
Mental Health Protection Act, Pub. Act 99-0411, 2015 Ill. Laws 5773, 5777.
26. See, e.g., King v. Governor of New Jersey, 767 F.3d 216, 239 (3d Cir. 2014) (calling
attention to empirical research on conversion therapy and highlighting the APA’s
unwillingness to link conversion therapy to harm), abrogated by Nat’l Inst. of Fam. & Life
Advocs. v. Becerra, 138 S. Ct. 2361 (2018).
27. Judith M. Glassgold, Research on Sexual Orientation Change Efforts, in T
HE CASE
AGAINST CONVERSION “THERAPY”: EVIDENCE, ETHICS, AND ALTERNATIVES 19, 23 (Douglas C.
Haldeman ed., 2022) (“The APA Task Force (2009) found that serious methodology issues
affected much of the research from the 1960s to 2008 that claimed that SOCE resulted in a
change to sexual orientation.”).
28. Robert L. Spitzer, Spitzer Reassesses His 2003 Study of Reparative Therapy of
Homosexuality, 41
ARCHIVES SEXUAL BEHAV. 757, 757 (2012); see also Benedict Carey,
Psychiatry Giant Sorry for Backing Gay ‘Cure,’ N.Y.
TIMES (May 18, 2012),
https://www.nytimes.com/2012/05/19/health/dr-robert-l-spitzer-noted-psychiatrist-
apologizes-for-study-on-gay-cure.html [https://perma.cc/654S-KXSC].
29. The article was retracted because a statistical review recommended by peer reviewers
was not initially conducted, and subsequent statistical review raised concerns about common
intervention and lack of control groups. Retraction Notice, 87 T
HE LINEACRE Q. 108, 108
(2020).
392239-ILJ 99-4_Text.indd 359392239-ILJ 99-4_Text.indd 359 5/29/24 10:56 AM5/29/24 10:56 AM
1410 INDIANA LAW JOURNAL [Vol. 99:1403
an American Psychological Association Task Force concluded that “the entire body
of research” failed to demonstrate that conversion therapy could change an
individual’s sexual orientation.
30
While several studies in favor of conversion
therapy have been published since, they have generally been published in fringe
publications and have not attracted scholarly support.
31
With conversion therapy’s
lack of efficacy demonstrated, it is important to next evaluate the harm that
conversion therapy can cause.
2. Evidence of Harm
While there is virtually no credible evidence to suggest that conversion therapy
works, there is a fair amount of work which suggests that conversion therapy can be
harmful. For example, in 2014, a study examining responses to conversion therapy
efforts found that respondents attributed a number of short-term and long-term
harmful effects to conversion therapy efforts.
32
With respect to short-term effects,
15% of respondents attributed mental health issues, such as depression and anxiety,
as well as feelings of shame, guilt, and self-hatred, to conversion therapy.
33
While
fewer respondents noted long-term mental health issues as a result of conversion
therapy, they did report higher levels of long-term shame, guilt, and self-hatred.
34
Recently, a new study has demonstrated a more substantial quantitative link
between conversion therapy and harm. In a 2020 peer-reviewed study of 1518 non-
transgender respondents, researchers found that:
Compared with not experiencing SOCE, experiencing SOCE was
associated with twice the odds of lifetime suicidal ideation, 75%
increased odds of planning to attempt suicide, 88% increased odds of
attempting suicide resulting in no or minor injury, and 67% increased
odds of suicide attempt resulting in moderate or severe injury (the last
did not reach statistical significance at P < .05).
35
This research is especially valuable because even after adjusting for adverse
childhood experience, such as domestic violence, parental mental illness, and
30. Glassgold, supra note 27, at 27.
31. Articles supporting conversion therapy are frequently published in the Journal of
Human Sexuality, the official journal of the Alliance for Therapeutic Choice and Scientific
Integrity, a tacitly anti-LGBTQ+ organization. See Journal of Human Sexuality, A
LL. FOR
THERAPEUTIC CHOICE & SCI. INTEGRITY, https://www.therapeuticchoice.com/journal-of-
human-sexuality [https://perma.cc/CK4Y-4WGN].
32. Annesa Flentje, Nicholas C. Heck & Bryan N. Cochran, Experiences of Ex-Ex-Gay
Individuals in Sexual Reorientation Therapy: Reasons for Seeking Treatment, Perceived
Helpfulness and Harmfulness of Treatment, and Post-Treatment Identification, 61 J.
HOMOSEXUALITY 1242, 1257–60 (2014).
33. Id.
34. Id. at 1259.
35. John R. Blosnich, Emmett R. Henderson, Robert W. S. Coulter, Jeremy T. Goldbach
& Ilan H. Meyer, Sexual Orientation Change Efforts, Adverse Childhood Experiences, and
Suicide Ideation and Attempt Among Sexual Minority Adults, United States, 2016–2018, 110
A
M. J. PUB. HEALTH 1024, 1027 (2020).
392239-ILJ 99-4_Text.indd 360392239-ILJ 99-4_Text.indd 360 5/29/24 10:56 AM5/29/24 10:56 AM
2024] BOTCHED BANS 1411
parental divorce, individuals who experienced conversion therapy were still found to
have a higher risk of suicidality.
36
Given the clear link to harm, it is necessary to
examine how well current bans address these harms.
II.
THE UTILITY OF CURRENT BANS
According to virtually all state conversion therapy bans, there is a “compelling
interest in protecting the physical and psychological well-being of minors, . . . and
in protecting its minors against exposure to serious harms caused by . . . change
efforts.”
37
While these statements are noble, this Section will demonstrate that
current conversion therapy bans are ultimately unable to accomplish the stated goals
that legislators set forth for them. This Section will also demonstrate how this
ineffectiveness is ultimately due to current bans’ sole focus on professionals, as well
as their occasional accommodation of conversion therapy practice by religious
groups. Lastly, this Section will argue that while laws may have been narrowly
drafted with good intentions, time has shown that such an approach was ultimately
in vain.
A. Focus on Licensed Practitioners
The most glaring flaw with current conversion therapy bans is that they only apply
to licensed practitioners. Of the twenty-two states to pass conversion therapy bans,
all twenty-two bans only regulate the practice of conversion therapy when it is
performed by some form of licensed professional.
38
Such a narrow regulation is
questionable, however, when one realizes that the vast majority of conversion
therapy is performed by unlicensed professionals.
39
Indeed, a 2019 report by the
Williams Institute at the UCLA School of Law estimates that 57,000 U.S.
adolescents will undergo conversion therapy practiced by religious advisors,
compared to the 16,000 who are estimated to receive conversion therapy from a
licensed professional.
40
Thus, current laws only regulate roughly twenty-two percent
36. See id.
37. This “compelling interest” statement is present in virtually all state conversion
therapy bans, but this specific wording was taken from the Illinois ban. Youth Mental Health
Protection Act, Pub. Act 99-0411, 2015 Ill. Laws 5773, 5776; see, e.g., Washington Ban,
supra note 23, at 2437 (“The legislature finds and declares that Washington has a compelling
interest in protecting the physical and psychological well-being of minors, including lesbian,
gay, bisexual, and transgender youth, and in protecting its minors against exposure to serious
harms caused by conversion therapy.”).
38. See LGBTQ+ Youth: Conversion “Therapy” Laws, M
OVEMENT ADVANCEMENT
PROJECT (Nov. 6, 2023), https://www.lgbtmap.org/img/maps/citations-conversion-
therapy.pdf [https://perma.cc/TS5R-L3ZD] (providing links to all of the relevant state
statutes).
39. See George, supra note 7, at 812.
40. C
HRISTY MALLORY, TAYLOR N.T. BROWN & KERITH J. CONRON, CONVERSION
THERAPY AND LGBT YOUTH UPDATE 4 (2019), https://williamsinstitute.law.ucla.edu/wp-
content/uploads/Conversion-Therapy-Update-Jun-2019.pdf [https://perma.cc/K9NR-B927].
392239-ILJ 99-4_Text.indd 361392239-ILJ 99-4_Text.indd 361 5/29/24 10:56 AM5/29/24 10:56 AM
1412 INDIANA LAW JOURNAL [Vol. 99:1403
of the estimated conversion therapy in the United States, thereby failing the vast
majority of LGBTQ+ youth who the bans seek to protect.
41
While this narrow focus is already ineffective in meeting the legislative purposes
of bans, it also has the potential to undermine those purposes by putting minors in
greater risk of harm. After all, by preventing the practice of conversion therapy in a
more clinical setting with someone who has at least been deemed competent enough
to hold a state license, these restrictions may be pushing desperate parents into
seeking out backdoor conversion therapies which are totally unregulated and
unsupervised.
42
Though it may seem counterintuitive to say that the professional practice of
pseudoscience is better than the unlicensed practice of pseudoscience, the particular
horrors of unlicensed, unregulated
43
conversion therapy have become apparent in
consumer fraud litigation against conversion therapy providers. One now defunct
conversion therapy organization, Jews Offering New Alternatives for Healing
(JONAH), was staffed by completely unqualified individuals who employed
byzantine techniques.
44
Among these techniques were group activities which
required participants to call each other homophobic slurs, stand together in circles
while naked, and employ aversive techniques
45
where participants snapped rubber
bands against their wrists every time they felt attraction to the same sex.
46
While the exposed cruelties of unlicensed conversion therapy practitioners do not
necessarily mean that licensed conversion therapy providers are any better, there are
at least some safeguards in place. Notably, state licensing for mental health and
related services often requires extensive background checks, knowledge
examinations, proof of education or clinical training, and continuing education
credits.
47
41. See id.
42. Conversion therapy providers have already demonstrated a willingness to work
around conversion therapy laws by offering online services in jurisdictions where it is illegal.
See, e.g., Andrew Sampson, Jenny Cowley, Eric Szeto & Asha Tomlinson, Conversion
Therapy is Illegal in Canada. But Some U.S. Life Coaches are Offering it to Canadians Online,
CBC (March 3, 2022, 4:00 AM), https://www.cbc.ca/news/canada/marketplace-life-coach-
conversion-therapy-1.6369104 [https://perma.cc/4FWG-CJZ4].
43. Licensed individuals are generally subject to licensing laws and regulations of their
state, but unlicensed individuals are often not held to the same standards. See, e.g., I
ND. CODE
ANN. § 25-1-9-6.7 (West 2023) (indicating that only licensed marriage and family therapists
are subject to disciplinary sanctions for misconduct).
44. Peter R. Dubrowski, The Ferguson v. JONAH Verdict and a Path Towards National
Cessation of Gay-to-Straight “Conversion Therapy”, 110 N
W. U. L. REV. ONLINE 77, 78
(2015).
45. Aversive therapy is “the process by which a noxious or unpleasant stimulus is paired
with an undesired behavior.” Aversive Conditioning, A
M. PSYCH. ASS’N DICTIONARY,
https://dictionary.apa.org/aversion-conditioning [https://perma.cc/RCR8-EMAY].
46. Ferguson v. JONAH, 136 A.3d 447, 450 (N.J. Super. Ct. 2014).
47. See, e.g., Behavioral Health and Human Services Licensing Information, I
ND. PRO.
LICENSING AGENCY, https://www.in.gov/pla/professions/behavioral-health-and-human-
services/behavioral-health-and-human-services-licensing-information/
[https://perma.cc/JK9P-NTFL].
392239-ILJ 99-4_Text.indd 362392239-ILJ 99-4_Text.indd 362 5/29/24 10:56 AM5/29/24 10:56 AM
2024] BOTCHED BANS 1413
It is also important to recognize that the professional focus of conversion therapy
bans may ultimately dissuade conversion-therapy-seeking parents from speaking to
mainstream licensed professionals about their child’s sexuality, thereby foreclosing
an important safety net. This is best understood in the context of a fictional AMA
ethics exercise in which a religious family initially speaks to their primary care
physician about their son’s apparent attraction to another boy at his school.
48
In this
ethics exercise, the family’s primary care provider can inform the family that
conversion therapy is both unproven and harmful, ultimately suggesting family
counseling.
49
It is not hard to imagine what might occur when conversion therapy bans targeting
professionals are as highly publicized as they are today. It is possible that, upon a
cursory Google search of conversion therapy in their state, the child’s parents see
that licensed professionals are prohibited from practicing conversion therapy. As a
result, they don’t believe their primary care physician can help. The parents never
receive any information about the harms of conversion therapy, and the primary care
physician is unaware of potential abuse that might occur in the future. In this
scenario, albeit a hypothetical one, professional-focused conversion therapy laws
ultimately work against a major child welfare safety net by discouraging conversion-
therapy-seeking parents from speaking to healthcare professionals.
50
While the
professional focus of such bans already damages their utility, the next Subsection
highlights how the ban utility issue is compounded by state legislatures’ willingness
to accommodate the same harmful practices when done by religious groups.
B. Religious Exceptions
While bans targeting professionals already fail to sufficiently meet their
underlying purpose, some state legislatures have gone even farther and actively
submit to the unlicensed religious groups that perform the vast majority of
conversion therapy in the United States. For example, in a 2018 Washington
conversion therapy ban, the drafters explicitly exempted religious organizations and
religion-affiliated counselors from the ban as long as no one involved in the process
was licensed.
51
However, such an exemption was unnecessary because religious
groups providing unlicensed conversion therapy would have already been exempted
under the plain text of the professional-focused ban.
52
In a similar way, a 2017 Nevada ban specifically exempted the practice of
conversion therapy for some licensed professionals. Individuals with a license were
permitted to perform conversion therapy in their capacity as religious counselors so
long as they did not hold themselves out as licensed professionals.
53
While this was
48. Philip Zachariah, Gregory S. Blaschke & Melissa Weddle, A Request for “Conversion
Therapy,” 16 A
M. MED. ASS’N J. ETHICS 877, 877 (2014).
49. Id.
50. In the commentary of the article, the authors stress the importance of creating “an
ongoing dialogue with . . . parents, acknowledging their beliefs while encouraging them to
support their [child] through this challenging period.” See id. at 880.
51. Washington Ban, supra note 23, at 2437.
52. See id.
53. Act of May 17, 2017, ch. 23, 2017 Nev. Stat. 109, 109 (codified at N
EV. REV. STAT.
392239-ILJ 99-4_Text.indd 363392239-ILJ 99-4_Text.indd 363 5/29/24 10:56 AM5/29/24 10:56 AM
1414 INDIANA LAW JOURNAL [Vol. 99:1403
done to comply with case law developments at the time,
54
it nevertheless highlights
the absurdity of stating such a lofty legislative purpose while simultaneously passing
a ban that can be made moot by merely claiming religious practice. While it is
possible that legislators were trying to prevent conversion therapy marketed as being
performed by licensed professionals, the efficacy of this approach is questionable
given that a person’s professional and private lives are not easily divorceable. With
the limited scope of these conversion therapy bans understood, it is next worth
examining the justifications for their low utility.
C. Justifying the Narrow Scope and Exceptions
While legal scholars have previously highlighted the rationales for such narrow
bills,
55
it is worth revisiting whether these rationales hold up in the current socio-
political climate. In her 2017 work, Marie-Amelie George highlighted two rationales
for the noncomprehensive nature of U.S. conversion therapy bans: expected
expressive effect and protection from legal challenges.
56
The first rationale, the expressive effect of the laws, refers to the idea that
regardless of practical effect, legislation condemning certain practices inherently
shapes social norms.
57
Essentially, by enacting anti-conversion therapy laws, society
at large will reject conversion therapy over time. This is an admirable rationale that
undoubtedly would have made sense in a time where same-sex marriage had only
been legalized two years prior and public sentiment was still catching up.
58
However,
after a decade of conversion therapy bans existing in the United States,
59
anti-
LGBTQ+ sentiments are still high, and recent legislative targeting of trans youth
60
demands that legislation do more than merely change social norms. Furthermore,
there is evidence that American society does not need further expressive legislation
to reject the practice of conversion therapy on minors. Indeed, in 2019, the Williams
Institute found that a mere eighteen percent of people surveyed supported the legality
of conversion therapy for minors.
61
§ 629.600).
54. S.B. 201, 79th Sess., at 1–2 (Nev. 2017) (noting in the legislative counsel’s digest that
recent conversion therapy case law was the reason for the exceptions).
55. See, e.g., George, supra note 7, at 825.
56. See id.
57. Id. at 825–26.
58. When George’s 2017 article was written two years after Obergefell, America was still
experiencing anti-LGBTQ+ legislative backlash and uncertainty. See Two Years After
Obergefell, It’s Time for the Equality Act, H
UM. RTS. CAMPAIGN (June 26, 2017),
https://www.hrc.org/press-releases/two-years-after-obergefell-its-time-for-the-equality-act
[https://perma.cc/X828-4MBG].
59. The first statewide conversion therapy ban was enacted in 2012. Mary Slosson,
California Bans Gay “Conversion” Therapy for Minors,
REUTERS (Sep. 30, 2012, 4:32 PM),
https://www.reuters.com/article/california-gaytherapy/update-2-california-bans-gay-
conversion-therapy-for-minors-idUSL1E8KU3H720120930/ [https://perma.cc/V4XE-E645].
60. See supra note 10 and accompanying text.
61. M
ALLORY ET AL., supra note 40, at 3.
392239-ILJ 99-4_Text.indd 364392239-ILJ 99-4_Text.indd 364 5/29/24 10:56 AM5/29/24 10:56 AM
2024] BOTCHED BANS 1415
The other, more practical rationale for the narrowness of conversion therapy bans
is the desire for them to be less controversial and survive legal challenges.
62
Again,
this rationale would make sense in 2017 because the actual utility and expressive
effect of a ban would naturally be diminished when it is continuously being enjoined
by litigation and potentially struck down.
63
However, after the partial abrogation of
conversion therapy bans by Becerra, the Eleventh Circuit takedown, and the recent
circuit split, it is clear that even the narrowest bills that bend over backwards to
accommodate religious groups will still be challenged.
64
There is simply no
compromise that conversion therapy providers will accept. Thus, after a near decade
of legal challenges, we are left with narrow bans that do relatively little and do not
address the needs of increasingly targeted LGBTQ+ youth in 2023. With the utility
and reasoning of these bans established, the next step in analyzing prior bans is to
examine their history in the courts.
III.
CONVERSION THERAPY BANS IN THE COURTS
To assess the effectiveness of current conversion therapy bans, it is necessary to
examine what legal challenges the bans have faced and how courts have ruled. The
cases that have reached the federal courts of appeal ultimately demonstrate that,
despite their narrow focus, professional-focused bans will continuously be
challenged, and even run the risk of being struck down.
A. The Original Challenges to Conversion Therapy Bans
Not long after the enactment of the first conversion therapy bans in the United
States, legal challenges arose from licensed therapists claiming that the laws violated
their First Amendment rights.
65
In these seminal cases, the Third and Ninth Circuits
applied the “professional speech” doctrine, which reasoned that regulations of
speech uttered incidentally to professional treatment were subject to a lower standard
of scrutiny than traditional speech regulations.
66
In applying this doctrine, the courts
held that conversion therapy bans were only subject to rational basis review or
62. See George, supra note 7, at 825.
63. Indeed, conversion therapy bans are routinely challenged and have been recently
struck down in some jurisdictions. See, e.g., Kalvis Golde, Washington Family Counselor
Challenges State’s Ban on Conversion Therapy, SCOTUS
BLOG (Apr. 15, 2023, 10:27 PM),
https://www.scotusblog.com/2023/04/washington-family-counselor-challenges-states-ban-
on-conversion-therapy/ [https://perma.cc/2S4G-U23G]; Andrew Krietz, Appeals Court
Affirms Tossing Out Tampa's Conversion Therapy Ban, WTSP,
https://www.wtsp.com/article/news/local/hillsboroughcounty/appeals-court-tampa-
conversion-therapy-ban/67-0255f0bf-14a4-4ebb-b88f-23412f0809d5
[https://perma.cc/D46P-8THE] (Feb. 2, 2023, 7:06 PM).
64. See supra Section III for a discussion of legal challenges in the courts and the recent
circuit split between the Ninth and Eleventh Circuits over whether conversion therapy is
conduct or speech.
65. See, e.g., Pickup v. Brown, 740 F.3d 1208 (9th Cir. 2014), abrogated by NIFLA v.
Becerra, 138 S. Ct. 2361 (2018); King v. Governor of New Jersey, 767 F.3d 216 (3d Cir.
2014), abrogated by NIFLA, 138 S. Ct. 2361 (2018).
66. See Pickup, 740 F.3d at 1231.
392239-ILJ 99-4_Text.indd 365392239-ILJ 99-4_Text.indd 365 5/29/24 10:56 AM5/29/24 10:56 AM
1416 INDIANA LAW JOURNAL [Vol. 99:1403
intermediate scrutiny because they only regulated treatment and any impact on
speech was incidental.
67
Although applying different standards of review, the circuits
upheld the bans, finding that the States had met their burden.
68
However, several years later, these decisions were cast aside by the Supreme
Court when it decided National Institute of Family and Life Advocates (NIFLA) v.
Becerra.
69
In NIFLA, the Court was not faced with a challenge to conversion therapy
bans, but rather a statutory requirement that crisis pregnancy centers provide notice
about state family planning services.
70
In its decision, the Court rejected the broad
“professional speech” doctrine and noted that it had only recognized two exceptions
in the past: commercial speech and speech of professionals limited incidentally due
to a regulation of conduct.
71
Until recently,
72
because Pickup and King primarily
relied on the professional speech doctrine, these decisions were deemed abrogated
by NIFLA.
73
However, two new cases discussed in the next Subsection highlight how
the landscape has changed since NIFLA.
B. The Recent Circuit Split
After the apparent abrogation of the original “professional speech” doctrine cases
by NIFLA in 2018, there was not another challenge to conversion therapy bans until
the Eleventh Circuit heard Otto v. City of Boca Raton in 2020.
74
In this case, licensed
marriage and family therapists sued, alleging that a local conversion therapy ban
infringed on their First Amendment right to free speech by regulating their talk
therapy business.
75
Boca Raton did not object to the assertion that talk therapy was
speech, but rather it pointed to the government’s compelling interest in protecting
minors.
76
The Eleventh Circuit did not dispute this categorization, and instead
bolstered it by citing the NIFLA decision that found a crisis pregnancy center notice
requirement was not conduct.
77
In treating the ban as a content-based regulation of
speech, the court naturally reviewed the law with strict scrutiny and found that while
there was a compelling state interest, the ban was not narrowly tailored and that the
paucity of research on recent conversion therapy efforts ultimately made the ban
untenable.
78
67. Pickup applied only rational basis review while King applied intermediate scrutiny.
Pickup, 740 F.3d at 1231; King, 767 F.3d at 237.
68. See Pickup, 740 F.3d at 1236; King, 767 F.3d 246–47.
69. NIFLA, 138 S. Ct. at 2371–72 (2018).
70. Id. at 2369.
71. Id. at 2372.
72. The Ninth Circuit in Tingley held that although parts of prior cases were abrogated,
other parts were not. See Tingley v. Ferguson, 47 F.4th 1055, 1071, 1074. (9th Cir. 2022)
cert.
denied, 144 S. Ct. 33 (2023), denying reh’g en banc, 57 F.4th 1072 (9th Cir. 2023).
73. See NIFLA, 138 S. Ct. at 2375.
74. 981 F.3d 854 (11th Cir. 2020).
75. Id. at 860.
76. Id.
77. Id. at 861.
78. See id. at 868–70.
392239-ILJ 99-4_Text.indd 366392239-ILJ 99-4_Text.indd 366 5/29/24 10:56 AM5/29/24 10:56 AM
2024] BOTCHED BANS 1417
However, Otto has recently been challenged by a new opinion from the Ninth
Circuit: Tingley v. Ferguson.
79
In Tingley, a licensed conversion therapy practitioner
challenged the constitutionality of a Washington conversion therapy ban by raising
free speech and free exercise claims.
80
In assessing these claims, the Ninth Circuit
ultimately split from the holding of the Eleventh Circuit in Otto by finding that
conversion “talk therapy” was professional conduct rather than normal speech.
81
As
a result of this finding, the Ninth Circuit applied rational basis review relying on the
NIFLA determination that “incidental speech swept up in the regulation of
professional conduct” was not afforded strict scrutiny.
82
In doing so, the Ninth
Circuit not only upheld the Washington ban, but it also upheld the California Ban,
finding that Pickup was not completely abrogated.
83
This was not the end of the Ninth Circuit’s opinion. Rather than stopping at the
specific exception noted in NIFLA, the court emphasized NIFLA’s indication that
other, more tailored restrictions of speech would be subject to rational basis review,
as long as they were part of “a ‘long (if heretofore unrecognized) tradition’ of
restriction.”
84
The court then found that there was a long tradition of regulating health
professions, citing a number of Supreme Court cases which recognized the ability of
the state to regulate the licensure and practice of healthcare, even if the care provided
did not involve prescribing drugs or the regulated practice was controversial.
85
Applying this finding to the case at hand, the court found that this long tradition
further bolstered its decision, noting that, without it, any alternative finding would
endanger healthcare where treatment was at least partly comprised of speech.
86
The court also addressed the plaintiff’s free exercise claim. In its analysis, the
court found that because the law did not specifically target religious groups, the ban
was neutral and therefore only needed to pass rational basis review.
87
In applying
this standard of review, the court found that neither the text of the law nor its
legislative history nor its operation was meant to purposely discriminate against
religious groups.
88
Thus, after striking down the petitioner’s free speech and free
exercise claims, the ban was upheld.
89
With the history of bans in the courts
established, the next Section will explore what a better conversion therapy ban might
look like.
79. 47 F.4th 1055 (9th Cir. 2022), cert. denied, 144 S. Ct. 33 (2023), denying reh’g en
banc, 57 F.4th 1072 (9th Cir. 2023).
80. Id. at 1071, 1084.
81. Id. at 1077; Otto v. City of Boca Raton, 981 F.3d 854, 859 (11th Cir. 2020).
82. Tingley, 47 F.4th at 1077 (quoting Otto, 981 F.3d at 865, 867).
83. Id. at 1077–78.
84. Id. at 1079 (quoting NIFLA, 138 S. Ct. at 2372).
85. Id. at 1080–81.
86. Id.
87. Id. at 1085.
88. Id. at 1085–89.
89. Id. at 1091.
392239-ILJ 99-4_Text.indd 367392239-ILJ 99-4_Text.indd 367 5/29/24 10:56 AM5/29/24 10:56 AM
1418 INDIANA LAW JOURNAL [Vol. 99:1403
IV. BUILDING A BETTER BAN: SHIFTING FOCUS TO UNLICENSED PRACTITIONERS
Given the shortcomings of narrow, professional-focused bans, there remains the
question of what a better solution looks like. In order to better serve the needs of the
LGBTQ+ youth who conversion therapy bans are meant to protect,
90
bans must shift
the focus so that they are inclusive of the vast majority of conversion therapy
providers: unlicensed individuals.
91
Given the unpredictability of the Supreme Court
in distinguishing between conduct and speech at the current time,
92
it is unclear how
a blanket ban of conversion therapy would be categorized and analyzed by the courts.
With this uncertainty in mind, it is also worth examining the possibility of a
conversion therapy ban targeting only unlicensed individuals. The Ninth Circuit’s
decision in Tingley highlights potential routes that would accomplish this. Although
a ban of this nature would not cover licensed professionals, broader professional
conduct regulations that are already in force have the potential to ensure that licensed
individuals would not be practicing any treatments that have been linked to
substantial risks of harm.
93
A first step in trying to build a better ban is to examine
the feasibility of a blanket ban on conversion therapy that applies to both licensed
and unlicensed individuals who practice conversion therapy.
A. The Feasibility of a Blanket Ban
While it would undoubtedly be the most effective way to protect LGBTQ+
children from the harms of conversion therapy, it is currently unclear if a blanket ban
of conversion therapy applying to both licensed and unlicensed individuals would be
a realistic legislative solution. Ultimately, the constitutionality of such a ban may
depend on whether conversion therapy is deemed to be conduct or speech (including
expressive conduct).
94
1. A Blanket Ban When Conversion Therapy Is Categorized as Conduct
Non-expressive conduct on its own is not entitled to First Amendment free speech
protection.
95
Indeed, health and welfare laws are generally subject only to rational
basis review.
96
This was demonstrated most recently in Dobbs v. Jackson’s Women’s
90. The government interest in the Washington Ban was stated as “protecting the physical
and psychological well-being of minors, including lesbian, gay, bisexual, and transgender
youth, and in protecting its minors against exposure to serious harms caused by conversion
therapy.” Washington Ban, supra note 23, at 2437.
91. See M
ALLORY ET AL., supra note 40, at 4.
92. While the recent dissent in 303 Creative LLC v. Elenis did recently touch on the
speech-conduct distinction, the majority opinion noted that the parties stipulated the alleged
acts were expressive, thereby avoiding making a speech-conduct distinction. See 303 Creative
LLC v. Elenis, 600 U.S. 570, 582, 597 (2023).
93. See supra Section I.B.2.
94. See supra note 81 and accompanying text.
95. See Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293 (1984) (noting that
expressive conduct is the type of conduct subject to First Amendment protections).
96. Dobbs v. Jackson Women’s Health Org., 597 U.S. 215, 301 (2022).
392239-ILJ 99-4_Text.indd 368392239-ILJ 99-4_Text.indd 368 5/29/24 10:56 AM5/29/24 10:56 AM
2024] BOTCHED BANS 1419
Health Organization where the Supreme Court upheld
97
a near total ban on abortions
that applied to both physicians and non-physicians.
98
If a blanket ban was deemed a
regulation of mere conduct in the healthcare field, it would likely pass rational basis
review.
99
After all, a ban on all conversion therapy could rationally be connected to
the State interest in protecting minors from the apparent harms of conversion therapy,
just as the Dobbs law regulating abortion was rationally related to interests like the
“respect for and preservation of prenatal life at all stages of development.”
100
However, while some have argued that talk-therapy should be regulated as
conduct,
101
the courts have floundered when faced with medical treatments
consisting only of speech and have yet to reach a consensus.
102
Indeed, even though
it conceded that conversion therapy is an act that people “engage” in, the Eleventh
Circuit nevertheless held that a conversion therapy ban was an impermissible
regulation of speech rather than a regulation of conduct. Conversely, the Ninth
Circuit pushed against this argument in Tingley, noting that categorizing such a
regulation of health and welfare would “endanger centuries-old medical malpractice
laws that restrict treatment and the speech of health care providers.”
103
Overall, the
current rift between the circuits means that the success of a conduct-based defense
of a blanket ban is fairly unpredictable, and it is necessary to examine the outcome
of a blanket ban if it is to be categorized as speech.
While the Ninth Circuit’s reference to the deleterious impact that a speech
categorization of talk therapy would have on other medical regulations
104
is certainly
compelling, the unpredictability of the Supreme Court’s analysis of such an issue is
apparent in the recent 303 Creative LLC v. Elenis decision.
105
In Elenis, the Court,
relied on stipulations that the creation of websites was expressive conduct and
ultimately held that a public accommodation law compelled speech by forcing a
website designer to create websites for same-sex weddings.
106
While the stipulations
made by the parties allowed the majority to avoid formally making a conduct-speech
distinction, Justice Sotomayor dissented, expressing her belief that the creation of
websites was purely conduct.
107
When Justice Sotomayor’s dissent is viewed in
97. Id.
98. The law bans aborting fetuses over fifteen weeks in gestation and applies to all
individuals, not just physicians. See M
ISS. CODE ANN. § 41-41-191(4)(a) (West 2022).
99. Rational basis review requires that a regulation be rationally related to a legitimate
state interest. See Tingley v. Ferguson, 47 F.4th 1055, 1078 (9th Cir. 2022), cert. denied, 144
S. Ct. 33 (2023), denying reh’g en banc, 57 F.4th 1072 (9th Cir. 2023).
100. Dobbs, 597 U.S. 215, 301 (2022).
101. The court in Tingley ultimately decided that regulation of talk-therapy could be
considered a regulation of professional conduct. See Tingley, 47 F.4th at 1077. Prior to this
decision, one scholar argued for the same categorization of talk therapy as professional
conduct. See Logan Kline, Revitalizing the Ban on Conversion Therapy: An Affirmation of the
Constitutionality of Conversion Therapy Bans, 90 U.
CIN. L REV. 623, 641–42 (2021).
102. Currently there is a split between the Ninth and Eleventh Circuits regarding whether
regulation of talk therapy is a regulation of professional conduct. See Tingley, 47 F.4th at 1077.
103. Id. at 1082.
104. See id.
105. See generally 600 U.S. 570 (2023).
106. See id. at 597, 603.
107. See id. at 604.
392239-ILJ 99-4_Text.indd 369392239-ILJ 99-4_Text.indd 369 5/29/24 10:56 AM5/29/24 10:56 AM
1420 INDIANA LAW JOURNAL [Vol. 99:1403
combination with speech-sympathetic lines of questioning from members of the
majority opinion,
108
it ultimately seems impossible to predict how the Court might
rule when making a speech-conduct distinction on the practice of conversion therapy.
As a result of this uncertainty, it is worth examining potential defenses of a blanket
ban in the event that conversion therapy is categorized as speech.
2. A Blanket Ban When Conversion Therapy Is Categorized as Speech
Were the practice of conversion therapy deemed to be a type of speech, a blanket
ban would be extremely difficult to defend. Because a blanket ban would totally
prohibit licensed and unlicensed individuals alike from engaging in conversion
therapy, there is likely no argument that a blanket ban would be banning a special
category of speech subject to lesser scrutiny. Although the court in Tingley argued
for the theoretical addition of a healthcare-focused category of speech regulation that
would allow professional-focused conversion therapy bans to be reviewed under
lesser scrutiny, it only referenced cases where regulations applied to licensed or
unlicensed individuals, not both.
109
Indeed, a regulation of speech that applies to
everyone would cease to regulate a special category. Thus, the only other potential
route for a speech regulation defense of a blanket ban would be for it to pass strict
scrutiny.
110
Under strict scrutiny, a blanket ban would need to be in furtherance of a
compelling State interest and be narrowly tailored to accomplish that interest.
111
This
analysis “leaves few survivors.”
112
The outlook for a conversion therapy ban under
this analysis is grim given that the court in Otto failed to find a compelling State
interest to exist where a specific harm from conversion talk-therapy was not
apparent.
113
While some have argued that the court in Otto erred in finding no
compelling state interest to exist in a licensed-practitioner-focused ban,
114
the
compelling interest issue is largely overshadowed by the narrow tailoring issue that
arises when analyzing a blanket ban. Indeed, a blanket ban on all speech that
constitutes the practice of conversion therapy is almost undoubtedly dispositive,
especially when the far narrower potential alternatives described below are
considered.
115
108. See Robert Barnes, Supreme Court Seems to Side with Web Designer Opposed to
Same-Sex Marriage, W
ASH. POST,
https://www.washingtonpost.com/politics/2022/12/05/colorado-creative-supreme-court-
lgbtq/ [https://perma.cc/4KD5-XDNY] (Dec. 5, 2022, 6:44 PM).
109. See Tingley, 47 F.4th at 1080–81.
110. Bans on conversion therapy are content-based and would normally be subject to strict
scrutiny unless they fall into an exception. See Otto v. City of Boca Raton, 981 F.3d 854, 863–
64 (11th Cir. 2020); Tingley, 47 F.4th at 1082 (suggesting that, regardless of the existence of
a special category of speech, conversion therapy bans are content-based).
111. See Otto, 981 F.3d at 868.
112. City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 455 (2002) (Souter, J.,
dissenting).
113. See Otto, 981 F.3d at 868.
114. See Kline, supra note 101, at 639–41.
115. See supra Section IV.B.
392239-ILJ 99-4_Text.indd 370392239-ILJ 99-4_Text.indd 370 5/29/24 10:56 AM5/29/24 10:56 AM
2024] BOTCHED BANS 1421
Thus, because the current future of the speech-conduct distinction is in flux, and
a blanket ban would undoubtedly not pass strict scrutiny, a more creative approach
is necessary. One such approach would be to extrapolate from the Ninth Circuit’s
decision in Tingley and explore the possibility of regulations that target only those
who are unlicensed.
B. A Ban Solely Focused on Unlicensed Practitioners
In Tingley, the Ninth Circuit ultimately reasoned that a professional conduct
exception and a theoretical new exception supported applying rational basis review
to the Washington ban on conversion therapy by licensed practitioners.
116
Upon
examination, this same reasoning could be utilized to support wider reaching
regulations of unlicensed individuals who comprise the vast majority
117
of
conversion therapy practitioners.
1. Regulating Unlicensed Practitioners via the Professional Conduct Exception
The Supreme Court, the Eleventh Circuit, and the Ninth Circuit all agree that
regulations of professional conduct that incidentally impact speech are not subject to
strict scrutiny.
118
Splitting with the Eleventh Circuit, the court in Tingley held that a
ban on the practice of conversion therapy by professionals constituted a regulation
of professional conduct.
119
Under this same line of reasoning, it may be feasible for
legislatures to instead regulate the practice of conversion therapy by unlicensed
rather than licensed individuals. Indeed, many of the cases cited in Tingley support
the idea that regulating professional conduct includes limiting those who can engage
in it via licensing requirements.
120
For example, in Capital Associated Industries, Inc. v. Stein, the Fourth Circuit
was faced with a challenge to a law that prohibited corporations from practicing
law.
121
In analyzing this regulation, the court reviewed with intermediate scrutiny
and found that the State had a substantial interest in protecting citizens from systems
that would potentially compromise the integrity of legal professionals by allowing
them to be managed by nonlawyers.
122
Furthermore, the court found that the general
prohibition and noted exceptions to corporations practicing law were sufficiently
tailored.
123
As a result, the Fourth Circuit held that the law was a regulation of
116. Tingley v. Ferguson, 47 F.4th 1055, 1080–81 (9th Cir. 2022), cert. denied, 144 S. Ct.
33 (2023), denying reh’g en banc, 57 F.4th 1072 (9th Cir. 2023).
117. See M
ALLORY ET AL., supra note 40, at 4.
118. See NIFLA v. Becerra, 138 S. Ct 2361, 2372 (2018); Otto, 981 F.3d at 865; Tingley,
47 F.4th at 1074; Cap. Associated Indus., Inc. v. Stein, 922 F.3d 198, 208 (4th Cir. 2019)
(“Although the Court's cases have not been crystal clear about the appropriate standard of
review, we do know that the state actors involved were not required to demonstrate a
compelling interest and narrow tailoring.”).
119. See Tingley, 47 F.4th at 1077.
120. See id. at 1076.
121. Cap. Associated Indus., Inc., 922 F.3d at 202.
122. Id. at 209.
123. Id.
392239-ILJ 99-4_Text.indd 371392239-ILJ 99-4_Text.indd 371 5/29/24 10:57 AM5/29/24 10:57 AM
1422 INDIANA LAW JOURNAL [Vol. 99:1403
conduct incidental to speech that passed the intermediate scrutiny required in the
Fourth Circuit, thereby making it constitutional.
124
Additionally, although far less definitive, the Fifth Circuit held open the
possibility that the professional conduct exception could be used to impose licensing
requirements in Vizaline, L.L.C v. Tracy.
125
In Vizaline, the court was faced with
lawsuit challenging a Mississippi law requiring surveyors to have a license.
126
Although the court reversed and remanded the case and therefore did not make a
definitive decision on the issue, it nevertheless did not immediately bar the district
court from determining that such licensing requirements constituted professional
conduct regulations on remand.
127
Given these decisions, it seems clear that a regulation prohibiting the practice of
conversion therapy without a license is a real possibility that would survive judicial
scrutiny. The proposed ban would clearly pass rational basis review. Under rational
basis review, “[a] law is ‘presumed to be valid and will be sustained’ . . . if it is
‘rationally related to a legitimate state interest.’”
128
In this case a state could identify
an interest in protecting children from the practice of potentially harmful conversion
therapy by individuals with no clinical training or proof of proficiency in therapy.
Because a regulation preventing the practice of conversion therapy by unlicensed
individuals is the logical response to fears of unlicensed individuals not possessing
the necessary skillset to safely practice conversion therapy, such a regulation would
almost certainly pass rational basis review.
129
It also seems likely that a regulation prohibiting the practice of conversion therapy
without a license would survive intermediate scrutiny. Under intermediate scrutiny
the state must demonstrate “‘a substantial state interest’ and a solution that is
‘sufficiently drawn.’”
130
As above, the state could identify the same interest in
protecting children from the practice of potentially harmful conversion therapy by
individuals with no clinical training or proof of proficiency in therapy. This state
interest would seem to be far more substantial than even the interest identified in
Capital Associated Industries. In that case, preventing corporations from practicing
law was justified by the state interest in protecting those seeking legal advice from
individuals who could hypothetically have their integrity compromised by corporate
management structures.
131
In this instance, the reason for the state regulating is far
124. Id. at 209–10.
125. Vizaline, L.L.C. v. Tracy, 949 F.3d 927 (5th Cir. 2020).
126. See id. at 929–30.
127. See id. at 934.
128. Tingley v. Ferguson, 47 F.4th 1055, 1078 (9th Cir. 2022) (quoting Erotic Serv.
Provider Legal Educ. & Rsch. Project v. Gascon, 880 F.3d 450, 457 (9th Cir.
2018), amended, 881 F.3d 792 (9th Cir. 2018)), cert. denied, 144 S. Ct. 33 (2023), denying
reh’g en banc, 57 F.4th 1072 (9th Cir. 2023).
129. Arguably this proposed regulation and state interest are far more rationally related
than current bans which paradoxically only prevent the most clinically educated and
scrutinized individuals from practicing conversion therapy. See Tingley, 47 F.4th at 1078;
supra Section II.
130. Cap. Associated Indus., Inc. v. Stein, 922 F.3d 198, 209 (4th Cir. 2019) (quoting
NIFLA v. Becerra, 138 S. Ct. 2361, 2375 (2018)).
131. Id.
392239-ILJ 99-4_Text.indd 372392239-ILJ 99-4_Text.indd 372 5/29/24 10:57 AM5/29/24 10:57 AM
2024] BOTCHED BANS 1423
more extant than a mere possibility. Indeed, the regulation is prompted by empirical
evidence demonstrating that the practice of conversion therapy on children can lead
to severe harm.
132
It is also likely that the regulatory solution to this issue would be sufficiently
drawn. Indeed, like the solution in Capital Associated Industries to ban potentially
integrity-undermining corporations from practicing law,
133
it does not seem too
broad to simply ban the group of individuals who lack demonstrated clinical
knowledge and professional oversight.
134
While a professional conduct-based approach may seem like an extremely viable
option for curtailing the practice of conversion therapy by unlicensed individuals, it
is worth noting that there may be some uncertainty in the future. A professional
conduct-based approach inherently requires that some form of conduct be regulated
so that any speech regulation is only done incidentally.
135
If such a regulation was
found to not regulate professional conduct, like the regulation in Otto was, strict
scrutiny would apply.
136
Given the continuing uncertainty regarding how the
Supreme Court would side on a speech-conduct distinction regarding conversion
therapy, it is possible that such an approach could be foreclosed either partially or
wholly.
137
Thus, it is important to also look at speech-based regulations which have
the potential to prohibit unlicensed individuals from practicing conversion therapy.
2. Regulating Unlicensed Practitioners via a New Category of Speech
In Tingley, the Ninth Circuit also highlighted, albeit in dicta, that another potential
option for upholding a conversion therapy ban would be to recognize a new form of
speech that has a “‘long (if heretofore unrecognized) tradition’ of restriction.”
138
If
such a tradition was recognized, it would mean that a regulation of that newly
identified category of speech would not be subject to strict scrutiny.
139
In its decision
the court reasoned that there was a sufficiently long history of cases to recognize a
longstanding but not previously recognized special category of speech “governing
the practice of those who provide health care within state borders.”
140
From the cases
132. See supra Section I.B.2.
133. Cap. Associated Indus., Inc., 922 F.3d at 209.
134. Licensed individuals are generally subject to licensing laws and regulations of their
state, but unlicensed individuals are often not held to the same standards. See, e.g., I
ND. CODE
ANN. § 25-1-9-6.7 (West 2023) (indicating that only licensed marriage and family therapists
are subject to disciplinary sanctions for misconduct).
135. See NIFLA, 138 S. Ct. at 2372.
136. See Otto v. City of Boca Raton, 981 F.3d 854, 865 (11th Cir. 2020).
137. The recent decision by the Supreme Court to side-step a speech-conduct decision in
303 Creative LLC only makes it more unclear how they might rule on an issue like conversion
therapy. See supra note 92 and accompanying text.
138. Tingley v. Ferguson, 47 F.4th 1055, 1079 (9th Cir. 2022) (quoting NIFLA, 138 S. Ct.
at 2372), cert. denied, 144 S. Ct. 33 (2023), denying reh’g en banc, 57 F.4th 1072 (9th Cir.
2023).
139. See id. at 1080 (“[T]he Court recognized that some subcategories of speech by
professionals are, in fact, excepted from heightened scrutiny and instead subject to less
scrutiny.”) (emphasis in original).
140. Id. at 1080.
392239-ILJ 99-4_Text.indd 373392239-ILJ 99-4_Text.indd 373 5/29/24 10:57 AM5/29/24 10:57 AM
1424 INDIANA LAW JOURNAL [Vol. 99:1403
cited by the Ninth Circuit, it seems likely that, if recognized by other courts, this
category of speech regulation would also allow for a ban on the practice of
conversion therapy by unlicensed individuals.
Notable among the cases referenced by the Ninth Circuit are Hawker v. New York,
where the Supreme Court held that it was within a state’s power to prohibit some
individuals from the practice of medicine based on aspects of their character like
prior convictions,
141
and Collins v. Texas, where the Court upheld a medical licensing
requirement for practitioners of osteopathic medicine.
142
Furthermore, in Collins, the
Court called attention to the fact that Texas still had the power to require an
individual to obtain a medical license, even though they practiced osteopathy, a
practice of the healing arts that did not utilize drugs at the time and instead aimed “to
help certain ailments by scientific manipulation affecting the nerve centers.”
143
A ban on the unlicensed practice of conversion therapy would fit in quite nicely
with this tradition of regulating the practice of the medical arts. Indeed, given the
Court’s acceptance of a prohibition from practice based solely on character, it seems
clear that a large amount of deference is given to states to act as gatekeepers of the
healing arts.
144
This is especially apparent in Hawker where the Court noted that “[i]t
is within the power of the legislature to enact such laws as will protect the people
from ignorant pretenders, and secure them the services of reputable, skilled and
learned men.”
145
This sentiment is further echoed in Collins where the Court found
that even when unlicensed practitioners used different treatment methods than
licensed doctors and purported to heal individuals in an entirely different way, the
State could still require that they abide by the same requirements as traditional
doctors.
146
Like these bans, a ban on the unlicensed practice of conversion therapy would
similarly allow a state to bar the practice of crucial healthcare related treatments
without a showing of competency and fitness through the acquisition of a license.
147
Indeed, Collins suggests that such a regulation of unlicensed conversion therapy
practitioners would still fall within the long history of regulation even if those
practicing conversion therapy without a license were doing so in a way that differed
from how a clinical therapist might approach therapy.
148
This is especially important
because it would mean that a ban on conversion therapy could even potentially cover
the practices of conversion therapy providers that operate based on pseudoscience
and abandoned therapeutic techniques.
149
141. See 170 U.S. 189, 191–92 (1898).
142. See 223 U.S. 288, 296 (1912).
143. Id.
144. See Hawker, 170 U.S. at 192–93.
145. Id. at 195 (quoting Eastman v. State, 10 N.E. 97, 98 (Ind. 1887)).
146. See Collins, 223 U.S. at 296–97.
147. See Hawker, 170 U.S. at 195.
148. See Collins, 223 U.S. at 296–97.
149. This would likely mean that the practice of aversive therapies no longer practiced by
modern, mainstream practitioners would be regulatable. See Ferguson v. JONAH, 136 A.3d
447, 450–51 (N.J. Super. Ct. Law Div. 2014) (highlighting some of the aversive therapy
techniques used by conversion therapy practitioners); see also A
M. PSYCH. ASS’N,
APPROPRIATE THERAPEUTIC RESPONSES TO SEXUAL ORIENTATION 24 (2009) (“Behavior
392239-ILJ 99-4_Text.indd 374392239-ILJ 99-4_Text.indd 374 5/29/24 10:57 AM5/29/24 10:57 AM
2024] BOTCHED BANS 1425
Given that the restriction of unlicensed conversion therapy practitioners would
seem to fit into the historical tradition identified by the court, a ban on unlicensed
practitioners would similarly be subject to a lower level of scrutiny.
150
As stated above, if such a ban were to be subject to rational basis review, the ban
would merely need to have a rational relationship to a legitimate state interest.
151
In
Tingley, the court found that the Washington prohibition on licensed professionals
practicing conversion therapy was rationally related to the state’s goal in protecting
children from the risks of conversion therapy.
152
The same could be said for a ban on
unlicensed individuals. Indeed, as above, the legitimate state interest could be argued
to be not just protecting children from the harms of conversion therapy, but also
protecting children from the harms of conversion therapy as practiced by someone
with no clinical experience or professional oversight.
153
Even in a jurisdiction that would apply intermediate scrutiny, it seems likely that
the ban would survive. Again, in order to survive this form of review, it is necessary
for a regulation to be “sufficiently drawn” so as to support a substantial interest.
154
Sufficiently drawn means only that there must be a reasonable fit between the
regulation and the state’s goal, and the regulation need not be the most restrained
exercise of state power.
155
This would likely be satisfied because, like the ban on
corporations practicing law in Capital Associated Industries,
156
the regulation in this
case would also seek to regulate only the individuals who were deemed to pose a
risk. Whereas corporate management posed a risk of jeopardizing the ethical conduct
of lawyers and putting their clients at harm in Capital Associated Industries,
157
unlicensed practitioners of conversion therapy lacking in clinical knowledge and
education would be potentially putting their patients at risk of greater harm than a
licensed professional held to rigorous standards. Thus, it seems that the regulation of
conversion therapy would be capable of surviving all forms of lesser scrutiny. Given
the past challenges to other bans,
158
the next Subsection will examine how a
conversion therapy ban focused on unlicensed professionals might survive free
exercise and parental rights challenges.
C. Resiliency of Licensing Requirements to Other Challenges
Although it is not within the scope of this Note to envision every foreseeable
challenge to conversion therapy bans, it is worth briefly demonstrating that bans
prohibiting the practice of conversion therapy by unlicensed professionals could
therapists became increasingly concerned that aversive therapies designed as SOCE for
homosexuality were inappropriate, unethical, and inhumane.”).
150. See Tingley v. Ferguson, 47 F.4th 1055, 1077–78 (9th Cir. 2022), cert. denied, 144
S. Ct. 33 (2023), denying reh’g en banc, 57 F.4th 1072 (9th Cir. 2023).
151. See supra text accompanying note 128.
152. Tingley, 47 F.4th at 1077–78.
153. See supra note 134 and accompanying text.
154. Cap. Associated Indus., Inc. v. Stein, 922 F.3d 198, 209 (4th Cir. 2019).
155. Id. at 209–10.
156. Id. at 202.
157. Id. at 209.
158. See supra Section III.
392239-ILJ 99-4_Text.indd 375392239-ILJ 99-4_Text.indd 375 5/29/24 10:57 AM5/29/24 10:57 AM
1426 INDIANA LAW JOURNAL [Vol. 99:1403
survive miscellaneous legal challenges based upon the free exercise clause and
parental rights, regardless if the claims were brought by themselves or as part of a
hybrid-rights claim.
1. Surviving Lone Challenges
As demonstrated by the Third Circuit’s decision in King,
159
a regulation of
unlicensed individuals would likely survive a lone free exercise challenge if the ban
was deemed to be conduct. In King, the court explained that a professional-focused
conversion therapy ban that was found to regulate speech would still survive a free
exercise challenge, so long as it was neutral and generally applicable.
160
To be
“neutral” and “generally applicable,” a law must apply uniformly and not target one
religious group over the other.
161
Because a ban on the unlicensed practice of
conversion therapy would apply to all unlicensed practice of conversion therapy and
would not target specific religious groups, it seems likely that religious challenges to
such a regulation would not be successful.
162
Brought alone, challenges based on parental rights would also not be likely to
pose a threat to a ban on unlicensed individuals that was found to only regulate
conduct. In Pickup, the court noted that “the fundamental rights of parents do not
include the right to choose a specific type of provider for a specific medical or mental
health treatment that the state has reasonably deemed harmful.”
163
Under this
reasoning, a parent would similarly have no right to be able to choose an unlicensed
professional to perform conversion therapy that requires a license. As a result, a
parental rights argument would likely not succeed in defeating the licensure
requirement.
2. Surviving Hybrid Rights Challenges and Similar Doctrines
Individuals could also challenge a ban on conversion therapy by unlicensed
individuals by bringing a hybrid rights claim, although some circuits have chosen to
reject the hybrid rights doctrine altogether.
164
Under a hybrid rights claim, a law that
is neutral and generally applicable may nevertheless receive strict scrutiny when a
challenger alleges a free exercise violation in addition to a violation of another well-
159. King v. Governor of New Jersey, 767 F.3d 216 (3rd Cir. 2014), abrogated by NIFLA
v. Becerra, 138 S. Ct. 2361 (2018).
160. See id. at 241–42.
161. Id. (quoting Brown v. City of Pittsburgh, 586 F.3d 263, 284 (3d Cir. 2009)).
162. In the past, free-exercise challenges to general and neutrally applicable policies
prohibiting the use of drugs have failed. See, e.g., Emp. Div., Dep’t of Hum. Res. of Or. v.
Smith, 494 U.S. 872, 890 (1990).
163. Pickup v. Brown, 740 F.3d 1208, 1236 (9th Cir. 2014) (relying on precedent relating
to the right to prescription drugs and the right to choose a specific type of mental health
provider), abrogated by NIFLA v. Becerra, 138 S. Ct. 2361 (2018).
164. See, e.g., McTernan v. City of York, 564 F.3d 636, 647 n.5 (3d Cir. 2009) (declining
to adopt the hybrid rights doctrine); Knight v. Conn. Dep’t of Pub. Health, 275 F.3d 156, 167
(2d Cir. 2001) (rejecting the hybrid rights doctrine as mere dicta).
392239-ILJ 99-4_Text.indd 376392239-ILJ 99-4_Text.indd 376 5/29/24 10:57 AM5/29/24 10:57 AM
2024] BOTCHED BANS 1427
established right such as the right to free speech or parental rights.
165
Thus, it is likely
that challengers to conversion therapy bans would use the hybrid rights doctrine,
combining free speech or parental rights with free exercise claims in order to try and
get a more rigorous form of scrutiny applied. However, it should be noted that, at the
current time, circuit courts of appeal have gone about analyzing hybrid right claims
in a number of different ways.
166
a. Hybrid Rights Based Challenges
Even with a hybrid claim, it is possible that a conversion therapy ban focused on
unlicensed professionals would be able to avoid having heightened scrutiny applied.
While it is not within the scope of this Note to examine every jurisdiction, it is worth
noting that some jurisdictions which accept the hybrid rights doctrine require an
individual bringing a hybrid rights claim to either first prove their companion right
was violated
167
or show that their claim is “colorable.”
168
Additionally, some
jurisdictions that reject the hybrid rights doctrine will nevertheless utilize strict
scrutiny if a claim is indistinguishable from a case where the Supreme Court already
found a hybrid rights violation.
169
If a challenger would have to prove their hybrid claim companion right was
violated or that their claim is at least “colorable,” a conversion therapy ban could
very well survive. If a free speech companion right was used for the hybrid claim,
the conversion therapy ban would have to first be recognized as a regulation of
speech rather than conduct.
170
Even if banning unlicensed professionals from
practicing conversion therapy was deemed to be a regulation of speech, a conversion
therapy ban could potentially still survive if it was recognized to be a new category
of speech subject to lower scrutiny as described above.
171
In that case, a challenger
would likely fail to show that a ban focused on unlicensed individuals failed rational
basis review or intermediate scrutiny.
172
Even if they need only show their claim is “colorable,” challengers would still
have to demonstrate that their free speech companion claim had a “fair probability
or a likelihood, but not a certitude, of success on the merits.”
173
Furthermore, when
establishing this definition, the Tenth Circuit Court of Appeals made it clear that this
standard should not be interpreted so broadly as to create a legal framework where
anyone could simply add another claim to make a hybrid rights claim.
174
Again, it
165. See Smith, 494 U.S. at 881.
166. See generally David L. Hudson, Jr. & Emily H. Harvey, Dissecting the Hybrid Rights
Exception: Should It Be Expanded or Rejected?, 38 U.
ARK. LITTLE ROCK L. REV. 449 (2016).
167. See id. at 460.
168. See id. at 463–64.
169. See id. at 458.
170. See supra note 102 and accompanying text.
171. See supra Section IV.B.2.
172. See supra Section IV.B.2.
173. Axson-Flynn v. Johnson, 356 F.3d 1277, 1295 (10th Cir. 2004) (quoting Miller v.
Reed, 176 F.3d 1202, 1207 (9th Cir. 1999)).
174. Id. at 1295–96 (“The adoption of a ‘non-frivolous’ standard would open the
floodgates for hybrid-rights claims, as nearly every plaintiff with a free exercise claim would
392239-ILJ 99-4_Text.indd 377392239-ILJ 99-4_Text.indd 377 5/29/24 10:57 AM5/29/24 10:57 AM
1428 INDIANA LAW JOURNAL [Vol. 99:1403
would likely be difficult for a challenger to overcome the “colorable” standard when
the regulation is backed by a compelling interest
175
and is tailored to impact only
those who lack clinical experience and professional accountability.
176
Alternatively, if a parental rights companion claim was brought, it would almost
certainly fail. Again, as the Ninth Circuit noted in Pickup, “the fundamental rights
of parents do not include the right to choose a specific type of provider for a specific
medical or mental health treatment that the state has reasonably deemed harmful.”
177
Thus, because there is no recognized parental right, it would be impossible to show
that fundamental parental rights had been violated or that there was a “colorable”
claim in the first place.
b. Challenges in Jurisdictions That Have Other Heightened Scrutiny Doctrines
Similarly, if a challenge was brought in a jurisdiction that does not recognize
hybrid claims
178
but nevertheless applies strict scrutiny if a claim closely matches
the fact patterns of hybrid rights cases noted by the Supreme Court,
179
the challenge
would likely fail. Under this standard, courts examine whether the facts of the claim
before them closely match Wisconsin v. Yoder,
180
a case where a Wisconsin
mandatory schooling law would have forced Amish children to remain in public
school against the will and religious beliefs of their parents.
181
If the claim does not
closely match, the court does not recognize the hybrid claim and instead applies the
“neutral and generally applicable” rule.
182
A challenge based on free speech or parental rights in one of these jurisdictions
would likely fail because a ban on conversion therapy by unlicensed individuals
would be easily distinguished from Yoder. In these sorts of claims, the Sixth Circuit
rejected a free speech claim where a veterinary student opposed a degree requirement
that would require healthy animals to be killed, emphasizing that her attendance of
veterinary school was voluntary rather than compelled like the compelled school
attendance in Yoder.
183
Although there is not an exact fit between the free speech
claim against a licensing requirement for conversion therapy and the free speech
claim brought by the veterinary student, courts might similarly find that a licensing
be able to assert an additional non-frivolous constitutional claim.”).
175. The court in Tingley v. Ferguson noted that the State of Washington had a compelling
interest “‘in the practice of professions within [its] boundaries,’. . . ‘regulating mental health,’
. . . and affirming the equal ‘dignity and worth’ of LGBT people.” 47 F.4th 1055, 1078 (9th
Cir. 2022) (citations omitted), cert. denied, 144 S. Ct. 33 (2023), denying reh’g en banc, 57
F.4th 1072 (9th Cir. 2023).
176. See supra note 134 and accompanying text.
177. Pickup v. Brown, 740 F.3d 1208, 1236 (9th Cir. 2014) (relying on precedent relating
to the right to prescription drugs and the right to choose a specific type of mental health
provider), abrogated by NIFLA v. Becerra, 138 S. Ct. 2361 (2018).
178. This approach is followed by the Second, Third, and Sixth Circuits. See Hudson et
al., supra note 166, at 458–60.
179. See id. at 458.
180. See id.
181. Wisconsin v. Yoder, 406 U.S. 205, 207 (1972).
182. See Hudson et al., supra note 166, at 457.
183. See id. at 458–59.
392239-ILJ 99-4_Text.indd 378392239-ILJ 99-4_Text.indd 378 5/29/24 10:57 AM5/29/24 10:57 AM
2024] BOTCHED BANS 1429
requirement for practicing conversion therapy does not rise to the level of state
compulsion. After all, whereas the regulation in Yoder forced Amish students to
attend school with no exceptions on the basis of religion,
184
a licensing requirement
would not, in and of itself, foreclose all conversion therapy, and individuals would
still have the ability to advocate for conversion therapy even if they were not allowed
to conduct the practice.
A claim using a parental rights companion claim may also fail in a jurisdiction
that only accepts hybrid rights claims when their facts are indistinguishable from that
in Yoder. The Second Circuit previously refused to apply heightened scrutiny in a
case where a student was forced to attend a health class, even though his father
objected on the basis of parental rights and free exercise.
185
In addition to rejecting
the hybrid rights doctrine, the court also declined to apply heightened scrutiny
because the requirement to attend a health class did not “threaten his ‘entire way of
life’” like the regulation did for Amish children.
186
A ban on conversion therapy by
unlicensed professionals would likely also not be found to threaten challengers entire
way of life like the statute in Yoder did. In and of itself, it would neither fully
eliminate the practice of conversion therapy, nor would it prevent unlicensed
individual’s advocacy of conversion therapy. It would instead merely limit the
practice of conversion therapy to those who had clinical training and misconduct
oversight. Thus, challenges based on hybrid rights or hybrid-rights-adjacent
doctrines would likely have limited success if any. With these potential challenges
addressed, the next Section addresses how existing state misconduct laws could also
ensure that harmful conversion therapy practices are not done by licensed individuals
who would not be covered under a ban on conversion therapy for unlicensed
individuals.
D. The Supplemental Potential of Licensing Boards and Conduct Statutes
One final advantage to a licensure requirement would be that it would likely not
foreclose professional licensing/misconduct boards from regulating the practice of
conversion therapy by licensed professionals. This is because many states already
have misconduct regulations that could conceivably be used to regulate the practice
of conversion therapy methods that have proven to be dangerous.
187
For example, in
Indiana, the statutory standards of practice set forth for licensed marriage and family
therapists prohibit them from acting “in reckless disregard of the best interests of a
patient, a client, or the public.”
188
Thus, if we are to trust licensing boards to act in
184. See Yoder, 406 U.S. at 207 n.2.
185. Leebaert v. Harrington, 332 F.3d 134, 139 (2d Cir. 2003).
186. See Hudson et al., supra note 166, at 459.
187. See, e.g., I
LL. ADMIN. CODE tit. 68, § 1283.100 (2023) (“A therapist must offer all
facts regarding services rendered to the client prior to administration of professional
services”); M
ICH. COMP. LAWS ANN. § 333.16221(a) (West 2023) (“[Grounds for disciplinary
action include] a violation of general duty, consisting of negligence or failure to exercise due
care, . . . whether or not injury results”); C
AL. BUS. & PROF. CODE § 4982(i) (West 2023)
(“[Unprofessional conduct includes] [i]ntentionally or recklessly causing physical or
emotional harm to any client”).
188. I
ND. CODE ANN. § 25-1-9-6.7(3) (West 2023).
392239-ILJ 99-4_Text.indd 379392239-ILJ 99-4_Text.indd 379 5/29/24 10:57 AM5/29/24 10:57 AM
1430 INDIANA LAW JOURNAL [Vol. 99:1403
the best interest of minor patients,
189
it seems likely that they would not hesitate to
sanction licensed professionals who perform unproven therapies with documented
risks on a minor.
There is evidence that licensing and misconduct boards already recognize their
duty to prohibit practices of conversion therapy that would put patients at risk. For
example, in Louisiana, a state completely lacking a conversion therapy ban, the State
Board of Licensed Professional Counselors nevertheless released a statement
reiterating the guidance of the American Counseling Association and discouraging
the use of conversion therapy.
190
Further, the Board emphasized the ethical
requirements of the American Counseling Association, noting that counselors using
treatments not backed by empirical science must inform patients about the unproven
nature of said treatments, make patients cognizant of risks, and “take steps to protect
clients from possible harm.”
191
Thus, working hand in hand with a ban on the unlicensed practice of conversion
therapy, these pre-existing regulations could easily regulate the vast majority of
licensed and unlicensed conversion therapy practitioners who currently operate using
methods that have been empirically linked to an increased risk of harm.
192
C
ONCLUSION
In conclusion, the rise in anti-LGBTQ+ sentiments in the United States
193
necessitates the protection of LGBTQ+ youth now more than ever. Currently,
conversion therapy is one of the most apparent harms to LGBTQ+ youth. It has no
therapeutic value or basis in empirical evidence, and it can lead to harmful
consequences for the individuals who are subjected to it.
194
While there have been
legislative attempts to stop the harms of conversion therapy, these bans were made
to be underinclusive to ensure that they would not be subject to legal challenges.
195
However, these attempts to protect legislation have ultimately failed, and conversion
therapy bans have been challenged for a decade.
196
Given that these bans will
inherently be challenged regardless of their scope or methods, the utility of these
bans requires review.
189. Medical boards in the United States are recognized as a key system used to ensure the
safety of patients and the legitimacy of the profession. See Christopher G. Roy, Patient Safety
Functions of State Medical Boards in the United States, 94 Y
ALE J. BIOLOGY & MED. 165, 171
(2021) (“[The medical licensure system’s] unique structure and history are likely to continue
to reflect its historical dual concerns of promoting patient safety and protecting physician
professional interests.”).
190. See Reparative Conversion Therapy Policy Statement, LPC
BOARD,
https://www.lpcboard.org/page/reparative-conversion-therapy-policy-statement
[https://perma.cc/NUS3-VGR2].
191. Id.
192. See supra Section I.B.2.
193. See supra notes 9–11 and accompanying text.
194. See supra Section I.B.2.
195. See George, supra note 7, at 825.
196. The first challenge of a conversion therapy ban was in Pickup v. Brown, and an
opinion was (originally) issued on December 4th, 2012. See 42 F. Supp. 3d 1347 (E.D. Cal.
2012), aff’d, 728 F.3d 1042 (9th Cir. 2013), and aff’d, 740 F.3d 1208 (9th Cir. 2014).
392239-ILJ 99-4_Text.indd 380392239-ILJ 99-4_Text.indd 380 5/29/24 10:57 AM5/29/24 10:57 AM
2024] BOTCHED BANS 1431
Ultimately, the reality of the situation is that current conversion therapy bans do
not effectively accomplish the legislative purpose of protecting the health and
welfare of LGBTQ+ minors. This is because the bans only address the practice of
conversion therapy by licensed professionals and leave an entire sector of unlicensed,
unregulated conversion therapy efforts untouched.
197
Moving forward, states must
be willing to take larger legislative leaps to protect LGBTQ+ youth. Waiting for the
judicial system to be more favorable to broader conversion therapy bans inherently
means that we are effectively sentencing countless LGBTQ+ children to lives of
trauma.
198
In order to more effectively meet the legislative purpose of these bans, there must
be a focus shift so that current ban efforts are inclusive of unlicensed professionals.
Legislation could potentially regulate a large swath of conversion therapy
practitioners by imposing large penalties for practicing conversion therapy efforts
without a license. Although a blanket ban does not seem feasible, especially given
the uncertainty about whether conversion therapy would be deemed speech or
conduct, there are other, more viable routes.
199
A ban on the practice of conversion
therapy by unlicensed professionals, either as a regulation of professional conduct or
as a regulation of another historically regulated type of speech, would allow bans to
prevent the vast majority of conversion therapy. While this may have the collateral
impact of legitimizing the pseudoscientific practice to some degree, it is important
to remember that regulation of unlicensed practice is less about recognizing efficacy
and more about recognizing potential harm.
200
While primary legislation would focus on the unlicensed practice of conversion
therapy, conversion therapy by licensed individuals could easily be regulated by
preexisting professional conduct rules requiring professionals to act in the best
interest of their patients.
201
As a result, the combined legislative actions could
essentially regulate the vast majority of coordinated conversion therapy efforts while
surviving challenges based on free exercise and parental rights claims.
197. See MALLORY ET AL., supra note 40, at 4.
198. See supra Section I.B.2.
199. See supra Section IV.
200. See Hawker v. New York, 170 U.S. 189, 194 (1898) (emphasizing that health
regulations aid in preventing the practice of those who could do harm).
201. See supra Section IV.D.
392239-ILJ 99-4_Text.indd 381392239-ILJ 99-4_Text.indd 381 5/29/24 10:57 AM5/29/24 10:57 AM
