Model legislation has been pushed across the country, with success in several States, that prohibits counselors from using “conversion therapy” for those with homosexual or transgender inclinations. This model legislation begins with “findings” about an alleged “consensus” of “scientific” opinion that any attempt to persuade someone that homosexual and transgender inclinations are undesirable is senseless and harmful. These findings are based on the assumption that such inclinations and behaviors, when compared to heterosexual ones, are equally advantageous and provide equally healthy outcomes to the individuals involved. The model legislation outlaws conversion therapy even if the individual involved desires it.
None of these “findings” or assumptions are accurate: (a) actions taken based on homosexual and transgender inclinations have serious, documented, physical and mental health consequences for the individuals; (b) such consequences also have serious monetary consequences in health care costs that are borne by all citizens; (c) social science studies using defensible methodologies do not support that either homosexuality or transgender status is “immutable”; and (d) the conclusions of organizations on which the assumptions of the proposed legislation are based are not founded on “settled science.” Moreover, the legislation seeks to stifle speech based on its viewpoint, in violation of the free speech guarantees of the federal and state constitutions, and violates other constitutional provisions as well. The model legislation is not in the best interests of the States or their residents.
- Studies do not prove that either homosexuality or transgender inclinations are unchangeable, and laws should not “lock in” one “scientific” view on this issue. Instead,
- Available scientific evidence does not support the assertion that gender identity is an innate, fixed property of human beings that is independent of biological sex.
- Most children who experience cross-gender identification do not continue to do so into adolescence or adulthood.
- The science concerning same-sex attraction and behavior is not settled.[A]
- The statements of the American Psychiatric Association and other organizations to the effect that “science” has reached a consensus on the immutability of homosexual and transgender inclinations, their equivalence in terms of psychological health to heterosexually oriented individuals, and that “conversion therapy” is harmful are founded on methodologically flawed studies and are contrary to documented facts.
- Studies do not support claims that homosexual and transgender inclinations are immutable.
- Studies do show that homosexual and transgender inclinations are affected in part by environmental factors.
- Studies do show that homosexual and transgender inclinations are correlated to personal and familial trauma.
- Studies do show that homosexual and transgender inclinations are changeable and that a significant number of those who change such inclinations are helped, not harmed.[B]
- The U.S. Centers for Disease Control (“CDC”) and other organizations have documented the serious physical and mental health consequences of practicing homosexual and transgender individuals, consequences that have serious monetary consequences in health care costs that are borne by all citizens.
- The CDC has published comprehensive surveys on health issues related to same-sex intimate relationships, which document a higher incidence of serious disease among the population that is involved in such relationships, including:
- Human immunodeficiency virus (HIV) and the auto-immunodeficiency syndrome (AIDS);
- Human papilloma virus;
- Cancer; and
- The health care costs for HIV/AIDS and other illnesses that have been statistically proven to be related to intimate sexual relations other than by a man and a woman in a monogamous relationship are highly significant, estimated to be in the billions of dollars annually in our nation. These costs are borne by the States directly, by State residents indirectly through health insurance premiums and taxes, by private financial assistance organizations of the States, and by the patients through out-of-pocket expenses.
- Members of the transgender population are at significantly higher risk of a variety of mental health problems compared to members of the non-transgender population.
- There is only limited evidence that social stressors such as discrimination and stigma contribute to the elevated risk of poor mental health outcomes for transgender populations.
- Evidence from early studies indicates that transgendered female (biological males living as females) youth are at greater risk of being engaged in sex work and of exposure to sexually transmitted diseases.[C]
- The model legislation violates freedom of speech, freedom of religion, and due process guarantees of the Federal and State Constitutions.
- The term “gender identity” has no fixed meaning and, by definition, is the product of an individual, subjective determination that may conflict with how the individual objectively appears to others. Because of its subjectivity, the term can be used by an individual in a temporally inconsistent manner, and legislation based on its use is vague and violates due process.
- The bill would be an impermissible government regulation of speech based upon its content or viewpoint, as it prohibits and penalizes speech only on one side of these issues.
- The bill would unconstitutionally infringe on the free exercise of religion, as some who wish to be assisted in resisting homosexual and transgender inclinations, and some who wish to counsel such individuals or convince them that they should do so, act based on religious principles.
- The bill would unconstitutionally restrict the access of individuals to information about how to address same-sex attractions and gender identity.
- The model legislation is both unnecessary and not in the best interests of the State or its residents.
- The States have these compelling interests:
- Maximizing the physical and mental health of its inhabitants;
- Minimizing the costs of health care to its inhabitants and to the State itself for preventable health issues;
- Preventing and minimizing diseases that are related to intimate sexual relations;
- Informing its inhabitants of the health and other dangers relating to intimate sexual relations outside of a marriage between one man and one woman;
- Confirming the personhood of all individuals and that such personhood is not dependent on their sexual preferences and conduct;
- Not stifling legitimate scientific inquiry;
- Protecting the free speech rights of its residents and not itself engaging in viewpoint discrimination; and
- Protecting the freedom of religion and due process rights of its residents and not legislating in violation of them.
- In furtherance of these compelling interests, the States should have these goals:
- Encouraging behavior that maximizes the probability that its citizens will enjoy good physical and mental health;
- Promoting public health and minimizing preventable public health problems;
- Through behavior that promotes the good health of its citizenry, ensuring that the expenditure of its limited public funds for public health purposes targets those health issues that are not easily preventable;
- Avoiding legislation that violates free speech of its citizens and is viewpoint discriminatory; and
- Avoiding legislation that violates freedom of religion guarantees of its inhabitants.
In sum, the purported “consensus” of “scientific” opinion on which the model legislation being pushed to outlaw conversion therapy is nonexistent.
[A] Mayer & McHugh, “Sexuality and Gender,” 50 The New Atlantis 7-8 (Fall 2016), http://www.thenewatlantis.com/docLib/20160819_TNA50SexualityandGender.pdf; “Gender Ideology Harms Children,” Am. Coll. of Pediatricians, Mar. 2016, updated Sept. 2017, https://www.acpeds.org/the-college-speaks/position-statements/gender-ideology-harms-children.
[B] Stanton L. Jones, Same-Sex Science: The social sciences cannot settle the moral status of homosexuality, First Things (Feb. 2012), available at https://www.firstthings.com/article/2012/02/same-sex-science; https://www.cdc.gov/mmwr/volumes/65/ss/ss6509a1.htm.
[C] www.cdc.gov/hiv/group/msm/index.html (last updated 2/27/18); www.cdc.gov/std/Syphilis/STDFact-MSM-Syphilis.htm; www.cdc.gov/std/hpv/stdfact-hpv-and-men.htm; www.cdc.gov/msmhealth/viral-hepatitis.htm; www.cdc.gov/std/tg2015/emerging.htm; https://www.cancer.org/healthy/find-cancer-early/mens-health/cancer-facts-for-gay-and-bisexual-men.html; Stark, D, et al., “Invasive Amebiasis in Men Who Have Sex with Men, Australia,” 14 Emerging Infectious Diseases 1141-1142 (July 2008), https://wwwnc.cdc.gov/eid/article/14/7/08-0017_article; www.cdc.gov/hiv/prevention/ongoing/costeffectiveness/index.html; www.americanprogress.org/issues/lgbt/report/2009/12/21/7048; L. Kris Gowen, “The Sexual Health of Lesbian, Gay, Bisexual, Transgender, and Questioning Youth,” at 24 (Oregon Health Authority, Public Health Division), https://www.pathwaysrtc.pdx.edu/pdf/pbSexualHealthDisparities.pdf.