PAIN AND PROFIT
California Might Make Conversion Therapy Consumer Fraud
LGBT groups have argued that conversion therapy is a harmful practice, and now in California a new bill argues it doesn’t do what it promises and so is defrauding the consumer.
Conversion therapy does not do what it claims to do.
Several major medical organizations—such as the American Psychological Association, the American Psychiatric Association, and the American Academy of Pediatrics—oppose the practice of trying to change someone’s LGBT identity on the grounds that it is not only harmful but ineffective.
Yet this medically condemned practice remains legal in the majority of U.S. states.
Those that have banned it have mostly done so by passing laws that only affect licensed professionals who offer the debunked therapy to minors. That leaves plenty of wiggle room for practitioners of conversion therapy to continue peddling their product to adults—or even to minors, so long as the provider is unlicensed.
But LGBT advocates say there’s another possible solution to this problem that has been gaining momentum for years: stopping conversion therapy by arguing—through both legislation and litigation—that promises to change a client’s sexual orientation or gender identity are technically a form of consumer fraud.
“There’s two different legal ways to address the harm caused by conversion therapy,” National Center for Lesbian Rights legal director Shannon Minter told The Daily Beast.
“One is to pass laws saying that state-licensed mental health professionals cannot subject minors to conversion therapy. The other legal remedy is that anytime anybody pays money for conversion therapy, they’re being defrauded. That’s already true.”
A new bill in California, AB 2943, is attempting to formally encode that second idea into the state’s existing Consumer Legal Remedies Act.
If the bill makes it back through the State Assembly by this Friday—and eventually onto Gov. Jerry Brown’s desk—after having already cleared the California Senate with bipartisan support in mid-August, it would explicitly state that “offering for sale, or selling services constituting sexual orientation change efforts” is considered an “unlawful practice.”
The bill is being cosponsored by statewide LGBT advocacy group Equality California.
“We believe that California’s existing consumer fraud laws protect LGBTQ Californians from conversion therapy,” Samuel Garrett-Pate, Equality California communications director, told The Daily Beast. “What we want to do—and what AB 2943 seeks to do—is make that crystal clear in the state law so that it’s not left up to anyone’s interpretation.”
This lightning rod of a bill—which, as Into reported, has sparked extreme anger from anti-LGBT groups on the religious right—is just the latest example of this consumer fraud-based approach to stopping conversion therapy.
If that strategy continues to prove successful, whether legislatively or in the courts, LGBT advocates say it wouldn’t replace but rather complement the state-level, youth-focused bans that are currently being passed at an unprecedented rate.
“I don’t believe that it’s an either-or situation,” Garrett-Pate told The Daily Beast. “I think that the bills that have been passed by California and a number of states that protect LGBTQ minors from conversion therapy are important… Unfortunately, there remains a small but dangerous group of individuals out there who are unlicensed or practicing on adults.”
The consumer fraud-based approach to banning conversion therapy has been in the works for at least three years.
In 2015, as The Daily Beast previously reported, a New Jersey state jury found the organization Jews Offering New Alternatives for Healing guilty of consumer fraud, after three men represented in court by the Southern Poverty Law Center claimed that JONAH had misled them about the success rate of their conversion therapy.
That lawsuit was, as the SPLC noted after the ruling, “the first of its kind nationally.”
“Conversion therapists, including the defendants in this case, sell fake cures that don’t work but can seriously harm the unsuspecting people who fall into this trap,” David Dinielli, legal director for the SPLC, said in a statement at the time, calling the verdict a “monumental moment” for LGBT equality.
What made it so monumental was that the SPLC had successfully framed conversion therapy as not just anti-LGBT quackery, but as a deceptive business practice. As Dinielli put it, the SPLC’s clients were “defrauded” with “false promises.”
Since 2015, a long string of states and municipalities have passed conversion therapy bans via their legislatures. Currently, 14 states have bans in place, most of which focus on the potential harm the practice inflicts on minors.
The Massachusetts ban, for example, stipulates that “any health care provider” who practices “sexual orientation and gender identity change efforts with a patient less than 18 years of age” could face the “suspension or revocation of [their license.]”
But Illinois’ conversion therapy ban, passed months after the 2015 New Jersey verdict, did include consumer fraud language.
As written, the Illinois law bans anyone from “offering conversion therapy services in a manner that represents homosexuality as a mental disease, disorder, or illness.”
Although passed with bipartisan support and signed by a Republican governor, this more comprehensive Illinois ban still caused outrage among the anti-LGBT right, prompting some pastors to sue the state in 2016 because they felt that the law violated their First Amendment rights to free speech and religious liberty.
But as the Cook County Record reported, District Court Judge Ronald Guzman ruled that the pastors’ suit could not move forward, pointing out that the law didn’t apply to “private religious counseling,” only to “those who deceptively advertise conversion therapy for commercial purposes.”
“Persons who have only speculative fears that a statute will be applied against them are not appropriate plaintiffs,” Guzman ruled.
Speculative fears are precisely what anti-LGBT groups are deploying once again in response to California’s bill.
There have already been debunked claims on the right, as the San Diego Tribune reported, that AB 2943 would ban the sale of the Bible.
Conservative writer David French called the bill a “dramatic infringement on First Amendment rights.” And as the LGBT advocacy group GLAAD noted, the anti-LGBT group Alliance Defending Freedom has claimed that AB 2943 would pose a threat to both religious freedom and free speech.
Those loudly expressed concerns prompted California lawmakers to make the bill even clearer, spelling out that it doesn’t just apply to anyone “offering to engage in sexual orientation change efforts” but those “offering for sale, or selling services constituting sexual orientation change efforts.”
Garrett-Pate told The Daily Beast that these recent changes were “technical clarifying amendments,” noting that the bill “never would have, for example, ‘banned the Bible.’” (The fact-checking agency PolitiFact also rated that Bible-banning claim as “Mostly False,” saying that “if the law had any impact at all, it would be on those occasions when a Bible is sold in conjunction with a program to change someone’s sexual orientation.”)
Still, Garrett-Pate says, the fine-tuning of the bill’s language will be important if LGBT advocates want to replicate California’s model.
“We’ve learned a lesson about where [anti-LGBT groups] will go and hopefully other states can learn from that lesson as well,” he said.
In other words, it will be important for states to try to emphasize that such laws are narrowly targeted at the conversion therapy industry—those who collect money in exchange for programs promising to alter sexual orientation and gender identity—not on religions that espouse anti-LGBT doctrine as a whole.
Offering to reduce someone’s attraction to the same sex for the low, low price of $999 for a three-week retreat, on the other hand, would be expressly banned.
And there’s no doubt that conversion therapy is indeed a money-making industry.
The Williams Institute at UCLA School of Law estimated in a report earlier this year that 20,000 of today’s LGBT youth will undergo conversion therapy in a medical setting before they turn 18.
The researchers further found that almost 700,000 LGBT adults had gone through it “at some point in their lives,” as they noted in a press release.
It would be impossible to estimate how much money that represents, but in many cases these individuals spend years in therapy racking up bills.
For example, as Yahoo! News reported, the parents of Matthew Shurka, a member of the advisory council for the National Center for Lesbian Rights’ Born Perfect campaign, doled out “tens of thousands of dollars” trying to change their son’s sexual orientation from gay to straight.
“It’s no wonder that people who are making quite a bit of money off of something that doesn’t work are going to be up in arms over the fact that we’re trying to stop them from doing that,” Garrett-Pate told The Daily Beast.
Of course, as a money-making industry, conversion therapy could also be subject to federal regulation, as national LGBT advocacy groups have argued to the Federal Trade Commission.
As The Daily Beast previously reported, the Human Rights Campaign, the National Center for Lesbian Rights, and the SPLC filed a complaint in 2016 to the FTC arguing that conversion therapy violates Section 5 of the Federal Trade Commission Act, particularly the ban on “unfair or deceptive acts or practices in or affecting commerce.”
Minter told The Daily Beast that there have been no updates from the FTC so far: “They haven’t acted on that petition. There’s nothing that requires them to act on a petition within any particular time frame, so it’s just been pending before them.”
In the meantime, Sen. Patty Murray (D-WA) sponsored the federal Therapeutic Fraud Prevention Act in 2017—a bill that would officially make paid conversion therapy an FTC violation.
Even without encoding the consumer fraud theory into federal or state law, Minter says that LGBT advocates can still use it in court. More rulings along the lines of the 2015 New Jersey state jury verdict could simply disincentive conversion therapy if fear of litigation under existing consumer fraud statutes begins to spread through the industry.
“I am very confident that anybody anywhere in the country that has paid money to a therapist or anyone else in exchange for a promise that they’re going to sell you something to change your sexual orientation or your gender identity—that would be considered consumer fraud,” he told The Daily Beast.
The National Center for Lesbian Rights is already putting that proposition to the test.
In 2017, as The Daily Beast previously reported, the group sued on behalf of a lesbian woman who says she paid over $70,000 to a California therapist who allegedly tried to pressure her into dating men.
Filed before AB 2943 was introduced, the lawsuit is built on the premise that such a law isn’t necessary to seek damages, even if its passage will make it easier for LGBT people to protect themselves.
“You can already sue for consumer fraud in California,” said Minter. “But [AB 2943]’s importance is more making sure that consumers know that—spelling it out expressly in the law so consumers know they have that remedy. That is not a small thing—it’s actually very helpful—but it’s actually not needed to establish the protection itself.”
That lawsuit, like the California bill, is still pending. One could potentially stop conversion therapy through a verdict, the other through votes. But LGBT advocates believe that conversion therapy’s days in the state are numbered—one way or another.