Following successful bans of conversion therapy for minors in California, Oregon, Illinois, New Jersey, and the District of Columbia, US Representative Ted Lieu — who authored California’s ban when he was in the state Senate — has introduced the federal Therapeutic Fraud Prevention Act. The bill would order the Federal Trade Commission to classify for-profit conversion therapy as fraud. It would also classify any advertising that claims to change sexual orientation or gender identity as fraud.
Conversion therapy, also known as reparative therapy or ex-gay therapy, aims to change an individual’s sexual orientation or gender identity through psychotherapeutic processes. There is no scientific evidence to suggest it is an effective practice, and there are many accounts of it causing severe harm. Every major medical and mental health professional association in the US has warned its members against conducting such therapy. (They haven’t banned it by name in their ethics codes for reasons I discussed here, in the context of California’s proposed ban.)
As was the case with California’s ban when it was first proposed, I’ve heard a number of concerns about this bill. Here is a list of common questions, with responses for each.
1. Why is this being done as a trade bill instead of a health care bill?
This was my first question when I heard of the federal measure. Constitutionally, the federal government has limited regulatory power. Regulation of the health care professions is left to the states, so the federal government lacks the authority to directly ban conversion therapy in the context of health care. But the feds do directly regulate interstate commerce. And consumer fraud was the clever mechanism used successfully in a lawsuit against the unlicensed therapists at JONAH who promised clients that their sexual orientation could be changed.
Calling conversion therapy fraud has a couple of nice side effects. It applies even to unlicensed therapists, who aren’t subject to the conversion therapy bans in effect in several states. And it allows for individuals to bring civil lawsuits against conversion therapists for damages.
2. The state bans on conversion therapy only apply to minors. Shouldn’t adults be able to decide on their own what kind of therapy they want?
The bans in several states apply specifically to licensed therapists offering conversion therapy to minors. The federal bill is much more far-reaching, both in its geographic scope and in the providers and clients to whom it would apply. It would apply to licensed and non-licensed therapists offering for-profit conversion therapy to anyone, adult or child. It essentially would cover any commercial setting where conversion therapy is offered or advertised.
We do regularly allow adults to subject themselves to risks that we don’t allow kids to be subjected to. But we also use the law to protect adults from a wide variety of risks. You have to wear a seat belt. Heroin is illegal. You can’t build a new house with electric outlets that might kill you. Using both state and federal law to promote consumer safety, even over the objections of some consumers, is not a novel or even a controversial idea.
The “freedom of choice for consumers” argument is the wrong framing for the question. Yes, adult person, you can choose to buy a pollution-spewing home heater from the 1960s if you want to. That’s your choice! But no dealer can legally sell it to you. The federal bill, like the state bans, isn’t about what consumers think is best for them. It’s about what sellers are allowed to say and do. In the therapy world, a client might think that having sex with their therapist would be a great idea that would help their self-esteem. That doesn’t mean therapists should have the right to sleep with their clients because it’s a “consumer choice.”
It’s also worth noting here that, like the state bans, the federal bill wouldn’t eliminate the practice of conversion therapy entirely. It could still be offered by any provider, religious or not, as long as they do not charge money for conversion therapy services.
3. Doesn’t this open the door to the federal government deciding what therapies are acceptable and what ones are not? Shouldn’t that be left to the professional associations?
As I argued in the debate around California’s ban, yes, professional self-governance is generally preferable to added government regulation of professional matters. But government regulation is appropriate and necessary when professional self-governance fails, as has been the case here. Professional associations have been slow to take clear stands against conversion therapy. Even when they have done so, conversion therapists have brushed off the associations’ stances and even state bans. The bans have limited reach, applying only to licensed therapists providing conversion therapy to minors. As it is now, therapists who want to continue providing conversion therapy to minors in those states can find ways around the bans. Furthermore, any therapist worried that their professional association will act against them for violating professional ethics can just leave the association, putting them outside the organization’s reach for ethics enforcement.
As to whether the government would start a checklist of acceptable and unacceptable therapies, that’s a slippery-slope argument which is generally understood to be lazy rhetoric. If we raise the speed limit on a stretch of road from 55 to 65, that doesn’t mean we’re somehow obligated or destined to raise it to 120. Any further change would be a separate discussion based on the information available to us at that time. The information available to us now shows clearly that conversion therapy is not effective and is potentially dangerous.
4. What is the status of the bill, and how can I take action?
As of this writing, the bill (formally HR2450) is in the House Subcommittee on Commerce, Manufacturing, and Trade. You can track its status here.
The bill has the support of the American Academy of Pediatrics, the American Counseling Association, the National Association of Social Workers, the American School Counselor Association, the National Associations of School Psychologists, and a long list of education, legal, interfaith, and LGBT advocacy groups. As of this writing, the bill has 45 cosponsors in the US House of Representatives.
Whatever your stance on the bill, you can let your representative know. It’s unlikely the bill will move this year given that most cosponsors are Democrats and the House majority is Republican, but it could happen — the state bans often received significant bipartisan support once legislators were educated about the issue. If professionals can convince representatives on both sides of the aisle to join as cosponsors, that increases the bill’s chances of getting out of committee.
If you’re a licensed therapist, you can also let your professional association know your stance. So far the ACA and NASW have taken positions of support, while APA and AAMFT have not taken any position.
My thanks to Samantha Ames of the National Center for Lesbian Rights and to James Guay, LMFT for their review and comments on earlier drafts of this post.