Conversion Therapy Ban Good Enough for Alito-Scalia-Roberts Court, But Not Klein-Skelos Senate

State Senator Brad Hoylman said a change in Senate leadership is needed. | DONNA ACETO

State Senator Brad Hoylman said a change in Senate leadership is needed. | DONNA ACETO

Amidst the shocked reaction to the Supreme Court’s Hobby Lobby ruling –– which opens up the possibility of religious exemptions being used as corporate get-out-of-jail free cards regarding employee nondiscrimination protections –– there was a less-noticed bit of good news on the last day of the high court’s session.

On June 30, the court declined to review an August 2013 ruling from the Ninth Circuit Court of Appeals that upheld California’s pioneering law barring licensed mental health professionals from engaging in sexual orientation conversion therapy on patients who are minors.

The California law is the model for a measure introduced in the New York State Legislature that the Senate refused to take up this year.

Practitioners of so-called “sexual orientation change efforts” (SOCE) filed two lawsuits challenging the California law on First Amendment grounds, but the Ninth Circuit upheld the statute, distinguishing between the rights practitioners enjoy to advocate for the practice in public debate and the limitations on the therapeutic practices they can employ in their professional conduct governed by state licensing.

The Supreme Court’s June 30 action effectively ended the effort to overturn the law and signaled the lack of sufficient support on the court for reexamining the Ninth Circuit’s conclusions about its constitutionality.

New York’s SOCE measure, sponsored by State Senator Brad Hoylman and Assemblywoman Deborah Glick, both out LGBT Manhattan Democrats, won Assembly approval on June 16 in an 86 to 28 vote.

However, despite its backers’ confidence that it had majority support in the Senate, the leadership –– headed by Long Island Republican Dean Skelos and his governing partner, the Bronx’s Jeff Klein, of the Independent Democratic Conference (IDC) –– did not allow the measure to get a Senate vote.

Both Hoylman and the Empire State Pride Agenda (ESPA) said the SOCE ban had the votes for passage and pointed to Long Island Republican Senator Jack Martins’ decision to sign on as a co-sponsor in the final days of the session, which ended June 20. At least two other GOP senators signaled their support, and the Pride Agenda had assurances of support from all five members of Klein’s IDC –– all of which substantiates the claims by Hoylman and ESPA that the votes were there.

Hoylman used the occasion of the high court’s refusal to review the California law as an opportunity to underscore his frustration that he was denied the opportunity to have his bill heard on the Senate floor.

“The Supreme Court's decision today to decline to hear a challenge to California's law prohibiting so-called ‘gay conversion therapy’ for minors is a milestone in our fight to outlaw this harmful and widely-discredited practice by licensed mental health providers,” he said in a written statement. “The court’s decision is also a sad and embarrassing reminder how New York lags behind other states that are protecting LGBT kids. It’s shameful that we can’t get the same legislation to the floor of the State Senate because of obstructionism by the Republican leadership –– even though it had the votes (35) to pass.”

Republicans actually won a minority of the seats in the Senate in the 2012 election, but were able to get control due to the decision by the IDC's five Democratic senators to defect from their party and enter into a power-sharing arrangement with the GOP. After the session ended, a deal under which the IDC would return to the Democratic fold was announced. That development followed a commitment Governor Andrew Cuomo made in late May to fight for Democratic control of the Senate in the November elections.

Advocates praised the efforts by two IDC members –– Tony Avella of Queens and Diane Savino of Staten Island –– in trying to push the SOCE measure forward, but Klein did not respond to press inquiries as to what steps he was taking. Klein faces a primary challenge in September from Democrat Oliver Koppel –– a former member of the City Council and State Assembly who 20 years ago served a brief stint as state attorney general –– fueled by anger at the obstacles he argues the IDC poses for progressive issues.

Advocates for the SOCE ban emphasize that leading professional groups — including the American Psychological Association, the American School Counselor Associations, the American Academy of Pediatrics, the National Association of Social Workers, and the American Academy of Child and Adolescent Psychiatry — agree that treating homosexuality and gender nonconformity as mental illnesses in need of cure actually increases mental health risks for young people in terms of depression, substance abuse, and suicide.

According to one source familiar with the effort to pass the bill, despite the unambiguous limits on it, Senate Republican leaders pointed to concerns some religious communities voiced about their freedom to counsel young people unfettered by the state. No such group, however, made a public statement in opposition to the bill.