Governor Charlie Baker signed a bill banning conversion therapy in Massachusetts on Monday, which an opponent says sets up a federal lawsuit to try to overturn it.
Baker signed the bill, but the governor’s press office did not issue a press release or tweet about it.
The measure, Massachusetts House Bill 140, makes it illegal for therapists to offer techniques designed to change the sexual orientation or gender identity of a person 17 or younger, on pain of losing the license to practice. It also declares conversion therapy to be an unfair or deceptive practice in commerce, under the state’s consumer protection law known as Chapter 93A, with a statute of limitations of four years for bringing a lawsuit by an individual or by the state Attorney General.
Legislators attached an emergency preamble to the bill, so it takes effect almost immediately.
The final version of the bill does not include an earlier provision that defined seeking conversion therapy as child abuse and thus possibly would have triggered action by the state Department of Children and Families against parents who pursue it. That provision, which was in the original version of the legislation passed earlier this year by the Massachusetts Senate, was taken out of the bill that both the House and Senate passed recently.
Massachusetts is the 16th state in the country to ban conversion therapy.
Supporters say conversion therapy doesn’t work and shouldn’t be tried.
“We thank the governor and legislative leaders for moving so quickly to protect LGBTQ youth from this fraudulent treatment, which is both cruel and barbaric,” Arline Isaacson, co-chairman of the Massachusetts Gay and Lesbian Political Caucus, told State House News Service. “The bottom line of it is, being LGBTQ is not an illness, it’s not a disease that needs to be cured, and these treatments are tantamount to child abuse, and we’re thrilled they’re finally going to ban the practice.”
Opponents of the ban cite cases where conversion therapy did work, and they say the new law infringes on the freedom of parents and children to decide what mental health therapy they want, particularly if a child experiences feelings of same-sex attraction or gender confusion that the child doesn’t want.
“This law is an extraordinarily invasive assault on the rights of parents to raise their children and a violation of the First Amendment right to free speech for the counselors whose help they seek,” said Andrew Beckwith, president and general counsel of the Massachusetts Family Institute, in a written statement. “MFI will pursue legal action against the Counseling Ban to defend those constitutional rights in our Commonwealth.”
The coming legal argument may hinge on how the U.S. Supreme Court decides what constitutes speech and what constitutes professional conduct.
Supporters of the ban say it regulates the conduct of licensed professionals, something states do all the time. But opponents of the ban say it limits the free speech of therapists, by limiting what they can say to patients in accord with their opinion on best treatment.
The U.S. Supreme Court has twice refused to hear appeals of cases where federal appeals courts upheld state laws banning conversion therapy, but that was before Anthony Kennedy was replaced by Brett Kavanaugh on the high court last year.
People who want conversion therapy to remain legal were encouraged by a majority opinion written by Justice Clarence Thomas in an unrelated case last year that noted that the federal Supreme Court has never ruled that professional speech is less protected than other kinds of speech. Thomas specifically cited three lower-court cases where he suggested professional speech might have been unconstitutionally infringed – two of them conversion therapy bans.
As for Massachusetts, the conversion therapy ban has already had an effect. Beckwith said he was contacted this past weekend by parents seeking therapy for their child, a teen-age biological female who currently identifies as a male, but a therapist he knows declined to take the case, on the assumption that the governor would sign the conversion therapy bill into law.
