On Friday, Dec. 21, the 9th U.S. Circuit Court of Appeals issued an emergency stay of SB 1172 - the historic California law that would prohibit licensed therapists from using junk science to try to "change" LGBT kids into heterosexuals. The law would have gone into effect on Jan. 1 but is now on hold until after a federal three-judge panel hears arguments to determine if it violates parental rights and the First Amendment rights of therapists.
Existing law provides for licensing and regulation of various professions in the healing arts, including physicians and surgeons, psychologists, marriage and family therapists, educational psychologists, clinical social workers, and licensed professional clinical counselors.
This bill would prohibit a mental health provider, as defined, from engaging in sexual orientation change efforts, as defined, with a patient under 18 years of age. The bill would provide that any sexual orientation change efforts attempted on a patient under 18 years of age by a mental health provider shall be considered unprofessional conduct and shall subject the provider to discipline by the provider's licensing entity.
In a statement after signing the bill, Gov. Jerry Brown said: "This bill bans non-scientific 'therapies' that have driven young people to depression and suicide. These practices have no basis in science or medicine and they will now be relegated to the dustbin of quackery."
But opponents of the law immediately filed two lawsuits seeking an injunction and were thrilled by the 9th Circuit's ruling on Friday.
Mathew Staver, president of the Christian legal group Liberty Counsel that is representing the so-called "reparative therapists" - including National Association for Research and Therapy of Homosexuality (NARTH) - and two families trying to overturn the law, said:
"This law is politically motivated to interfere with counselors and clients. Liberty Counsel is thankful that the 9th Circuit blocked the law from going into effect. This law is an astounding overreach by the government into the realm of counseling and would have caused irreparable harm."
The decision is in response to an appeal of District Judge Kimberly J. Mueller's decision in Pickup v. Brown denying Liberty Counsel's request for an injunction. "The findings, recommended practices and opinions of 10 professional associations of mental health experts is no small quantum of information,'' Mueller wrote in a 44-page decision arguing that the opponents would likely not win their case. "The court finds there is no fundamental or privacy right to choose a specific mental health treatment the state has reasonably deemed harmful to minors."
Mueller's ruling superseded another ruling by District Court Judge William Shubb in another lawsuit filed by Pacific Justice Institute also seeking an injunction. "Because the court finds that SB 1172 is subject to strict scrutiny and is unlikely to satisfy this standard, the court finds that plaintiffs are likely to succeed on the merits of their . . . claims based on violations of their rights to freedom of speech under the First Amendment," Shubb wrote, adding that SB 1172 is "based on questionable and scientifically incomplete studies that may not have included minors." However, Shubb did grant enforcement of SB 1172 against the three individuals that brought that specific Welch v. Brown lawsuit.
"This ruling allows therapist to continue treating minors without fear of losing their licenses," said antigay Capitol Resource Institute's Karen England. "This is a victory for individual rights, parental rights and free speech."
But Shannon Minter, Legal Director for the National Center for Lesbian Rights, isn't worried. "The decision is disappointing, but not surprising," he said. "The court has not had a chance to closely examine the law yet. I am confident that when they do, they will see that it is similar to countless other laws that regulate medical professionals."
The AP reported that the 9th Circuit has requested briefs on the constitutional issues but has not scheduled arguments. Additionally, Attorney General Kamala Harris's press secretary Lynda Gledhill told AP: "California was correct to outlaw this unsound and harmful practice, and the attorney general will vigorously defend this law."
"We have looked at the constitutionality carefully and there is nothing unconstitutional about this law. What the opposition is saying is that this is a violation of their First Amendment rights. But the First Amendment was never viewed as protecting the practice of medicine through talking. That's why a psychologist can be sued for malpractice. So in my mind, this is not about the First Amendment and I don't think they have a case."
But this segment on CNN shows that the case is not as easy to win as one might first imagine:
The segment also shows how the parsing of words and meaning will matter. For instance, Liberty Counsel's Staver says: "Certainly our counselors do not engage in stigmatization." However, Liberty Counsel represents NARTH - which practices so-called "reparative therapy." LGBT people would say there is nothing inherent in homosexuality that needs to be "repaired" or "changed" and suggesting that there is stigmatizes the LGBT person.
But it's one thing when the debate is between two lawyers, gingerly moderated by gay anchor Anderson Cooper - who unfortunately didn't ask Staver why he and other opponents called SB 1172 "Jerry Sandusky laws" - and it's quite another to have the same "discussion" promoted on a mainstream daytime TV show that's supposed to provide clear education on health and related issues. That's what happened recently on the Dr. Oz Show, during which he touted the NARTH representative as an "expert" who was equal in professional stature to the other experts on the show.
When Dr. Mehmet Oz first appeared on The Oprah Winfrey Show in 2004, he seemed like someone whose advice you could trust. After all, Oprah wouldn't have introduced him to her millions of fans and then given Oz his own TV show in 2009 unless he was the real deal. His contributing writer bio on Oprah.com says Oz is a professor of surgery at Columbia University with research interests in heart replacement surgery, minimally invasive cardiac surgery, complementary medicine and healthcare policy - all of which suggests he's a guy who takes his medical ethical Hippocratic Oath seriously to "first, do no harm."
But The Dr. Oz Show has not been adverse to controversy, as detailed in this April 2010 story in the Chicago Tribune. "Much of the material Oz provides is solid, but some medical experts express reservations about his approach, saying Oz's ventures also offer advice unsupported by science," according to the Tribune, including "discussions" - later slammed, regarding autism, chronic fatigue syndrome and other medical issues. One controversy that created widespread criticism was when Oz's "investigative unit" found trace levels of arsenic in some popular brands of apple juice, leading a school district to remove apple juice from its menu. The Food and Drug Administration slammed him, calling the report "irresponsible and misleading." ABC News Health and Medical Editor Dr. Richard Besser confronted Oz on "Good Morning America:"
"Mehmet, I'm very upset about this, I think that this was extremely irresponsible," Besser said. "It reminds me of yelling fire in a movie theater."
"I'm not fear-mongering," Oz fired back. "We did our homework on this risk."....
Juice manufacturers, government regulators and scientists said the results of what the program called its "extensive national investigation" were misleading and needlessly frightening to consumers.
In the opinion of some LGBT organizations, Oz was just as "extremely irresponsible" on Wednesday, Nov. 28, when he aired a show on so-called "reparative therapy" - but this time the harm done was not to products but potentially to LGBT kids and their vulnerable parents.
Oz claimed it was important to listen to "both sides" of the "debate" in the open on his TV show, instead of holding such discussions in "back alleys" - though he never really explained what he meant by the "back alleys" reference. To facilitate the "debate," he brought on a representative from NARTH and called that representative an "expert" and gave her a moral and professional equivalency on the stage panel with gays who decried the need for so-called "reparative therapy."
After the show, Oz posted a comment on his blog saying that - after listening to both sides - he now agrees with the "established medical consensus:" "I have not found enough published data supporting positive results with gay reparative therapy, and I have concerns about the potentially dangerous effects when the therapy fails, especially when minors are forced into treatments."
(NARTH "expert" Dr. Julie Hamilton and Dr. John Sharp post videos after the Dr. Oz show)
LGBT participants spoke out on the blog afterwards - suggesting the show's producers were more interested in creating controversy than in promoting truth. Executive Director Dr. Eliza Byard of the Gay, Lesbian & Straight Education Network (GLSEN) said she would never have done the show [pdf] if she had know NARTH would be a recognized panelist. "The Dr. Oz Show provided a platform to a fringe organization promoting dangerous and harmful practices that every major health, mental health and education organization has consistently repudiated as harmful to youth," she said.
This came later from Liz Owen, Director of Communications for PFLAG/National:
I was called by an Associate Producer, as we often are, to provide people to appear on the show. When I learned the subject matter for the episode, I immediately declined and made the emphatic request--later demand--that they not produce this episode. When I asked who the other guests were, I was told they were having "experts" on both sides. I reiterated that they couldn't possibly have any real experts on the "pro" side as this method has been debunked and repudiated by all legitimate experts. They said they had Chris Doyle, "a leading therapist."
I explained to the Associate Producer that Doyle is a board member of an organization called PFOX, and briefly described the issues, why there is truly no legitimate debate here, the dangers and potential harm from the show, at which point the associate producer claimed she couldn't really help me. I told her that I needed to speak to the Executive Producer, immediately.
It took two to three days to hear back from this EP, during which I left messages and sent emails to my original point of contact, all of which went ignored. When I did finally hear back, the conversation with the EP was heated. Among other things, I asked why Wayne Besen wasn't participating. She said he "wasn't available," which I subsequently found out from Wayne was untrue.
(Wayne Besen's group Truth Wins Out protests NARTH in Orlando)
In this segment, Oz interviews NARTH quack and extremist Christopher Doyle. Notice that no one is opposing his blatant lies about the causes of homosexuality. Dr. Oz should be ashamed for providing a platform for such outright lies. He simply allows Doyle to invent "science" that doesn't exist.
In this segment, Oz refers to Doyle as an "expert" in this arena. This was unconscionable and conferred credibility that Doyle has not earned. When Doyle said "it works" and offered himself as living proof, why wasn't Dr. Oz prepared with video of other "ex-gays" who were just as adamant -- such as John Paulk and Michael Johnston -- who later were shown to still be gay? TWO offered to help with such background material, but the producers had virtually no interest in creating an accurate show filled with historical fact. They were simply going for raw emotion, which Doyle provided. Then, Doyle trotted out his wife. Could Oz not have also had a divorced wife from the Straight Spouse Network on-stage at the same time to relay the reality of such doomed marriages?
(The "ex-gay" groups have often told producers that they would not appear if I were included. An ethical producer would tell such people to get lost -- that only the producers decide who goes on. Unfortunately, many producers and hosts are unprofessional and allow "ex-gay" groups to choose their opposition, essentially stacking the deck in their favor. If this is what occurred on Dr. Oz, the producers in charge should be immediately fired for violating professional ethics and journalistic standards)
This segment purportedly delves into reparative therapy. Oz begins on an awful note by referring to the show as presenting "both sides of the debate," although the debate has really been settled for decades in the medical and mental health communities. It is shameful and a mark of ignorance that he would frame the issue in such a biased, loaded way.
In this most infuriating of segments, Oz provides a marketing opportunity by filming a puff-piece for Journey into Manhood's Rich Wyler to promote his $650 weekend "pray away the gay" retreats. Interestingly, he never shows the group's cuddle room, where men pet, hold, and fondle each other in an allegedly non-sexual way. Why did they even bother making this a segment when they could have simply bought Journey into Manhood a free five minute infomercial? Doyle ends with the bizarre claim he "knew he wasn't a gay man" which was an interesting assumption on his part considering he was sexually attracted to dudes and sought therapy to change. What he says is incoherent and illogical. But Oz never points out this glaring contradiction.
Please go to Truth Wins Out for the rest of Besen's take down. It should also be noted that Besen says Dr. Oz...
is no homophobe, so his half-assed effort was disappointing. Truth Wins Out strongly urges him to revisit the issue in way that more closely mirrors the consensus of the medical and mental health establishment. We have confidence that he can still create a meaningful show that highlights the harm and horror caused by the "ex-gay" myth. Let us hope he learns from this experience and moves on to create better TV in the future. If not, he should give up his microphone and hair product and enter a new field.
But while GLAAD's Aaron McQuade acquitted himself well on the show and issued a blistering statement afterwards - the truth is that most people might not know that Dr. Oz seems to have a tendency to give out controversial - even wrong information and to my knowledge - he never corrects the errors on his own TV show, such as a news host might have to do. Accountability seems to come on other shows - that his viewers may not watch - and on his blog, which also does not reach the same huge audience. We don't even know if the show will go into re-runs.
And without explaining why they put a hold on the law going into effect, the 9th Circuit Court is now suggesting that the First Amendment rights of licensed therapists the governor of California says practice "quackery" are more important than the harm medical and psychological organizations say such junk science causes LGBT kids.
So what are biased or frightened parents telling their suspected LGBT kids home for the holidays? And what are TV talk show producers planning for their next controversial show - now that the 9th Circuit has given them the green light to misinform?