New York City’s ban on gay conversion therapy was the country’s most expansive when it passed in 2017. It banned any services that for a fee "seek to change a person’s sexual orientation or seek to change a person’s gender identity to conform to the sex of such individual that was recorded at birth.”
The ban’s reference to “a person” — with no mention of age — is behind the City Council’s move on Thursday to repeal the measure. The decision comes amid fears that the ban could have unintended consequences should a lawsuit filed this year by an anti-LGBTQ advocacy group reach the Supreme Court.
Corey Johnson, the openly gay City Council speaker, has led the effort to repeal the law, saying in a statement that “the council concluded that it was best to take this drastic step,” which he called a “painful decision.”
Unlike the 18 states that ban conversion therapy for minors (New York State passed its own ban for minors in January), New York City’s 2017 Counseling Censorship Law prohibits the practice for all people, including adults. This distinction was seized upon by the Alliance Defending Freedom, a conservative legal group with a long history of fighting gay rights. In January, ADF filed a lawsuit on behalf of Dovid Schwartz, an Orthodox Jewish psychotherapist from Brooklyn.
“The Counseling Censorship Law prevents adult patients from hearing ideas and suggestions from skilled professionals that the patients want to hear, and from obtaining help from such professionals to pursue the attractions, identity, relationships, and indeed life that they choose for themselves and desire to pursue,” the complaint states.
In the suit, Schwartz alleges that some of his adult clients seek out conversion therapy services that he offers in order to “experience opposite-sex attraction so they can marry, form a natural family, and live consistently with their Orthodox Jewish faith.”
Roger Brooks, an attorney with Alliance Defending Freedom, said the City Council's "move toward repeal is a win for Dr. Schwartz, his patients, and all New Yorkers."
Samuel Brinton, who has led the Trevor Project’s “50 States, 50 Bills” effort to ban LGBTQ conversion therapy for minors in each state, said the organization fights for minor bans precisely because of the widely documented harms of the practice for LGBTQ youth.
“Much like blood transfusions and other medical emergencies — youth don’t have the agency to act on their own behalf," Brinton said. "Therefore the state has the responsibility to act in the child’s welfare when the parents or guardians are not acting in their best interest."
Amit Paley, the CEO of the Trevor Project, an LGBTQ crisis prevention group, noted that youth who undergo the practice are twice as likely to attempt suicide than those who did not.
“Every week, the Trevor Project hears from LGBTQ youth reaching out about conversion therapy's continued harms, and we know that legislation like New York's existing statewide protections are the national gold standard for protecting youth from this dangerous and discredited practice,” Paley said.
Dale Carpenter, professor of constitutional law at Southern Methodist University, said the " concern gay rights advocates have is the line between adults and children might not be so clear." However, he added, "we definitely don’t want to tempt the court to erase the line."
Carpenter said that the court has found that tobacco companies have a free speech right to advertise to adults, but not to children, even though the harm of smoking tobacco is indisputable. Indeed, he said, the right for an adult to solicit conversion therapy services may be constitutionally protected.
“The argument would be: Adults have a right, under the first amendment, to receive information and ideas, regardless of the worth or merit of that information or ideas,” said Carpenter. He said Justice Thurgood Marshall wrote in 1969 that “adults have the right to possess even obscenity in their home, even though obscenity itself was not protected by the First Amendment.”
“I think there’s a second aspect, a second dimension to the constitutional argument, that actually has been augmented by court decisions in gay rights victories,” Carpenter continued. “Courts have said in cases like Lawrence v. Texas, and Obergefell that individuals have the right to define their own concept of their existence and identity free from state coercion.”
Currently, adults living in New York State — outside New York City, where ADF’s client practices — are fully entitled under the law to pay for conversion therapy services from a professional who is selling it, even if state law also enables them to seek compensation if they later believe this service was offered “fraudulently.”