Scrutinizing the Conversion of Scrutiny Applied to Conversion Therapy: A Ninth and Third Circuit Split

Author: Stephen Doyle, Associate Member, University of Cincinnati Law Review

For four decades, homosexuality has not been considered a mental disease or defect.[1] Nonetheless, many parents attempt to subject their children to sexual orientation change efforts (SOCE) to ensure their maturation in a heteronormative lifestyle despite the many negative physical and mental health effects SOCE can have on an individual. Both California[2] and New Jersey[3] passed laws banning the practice of SOCE on minors by licensed mental health providers. Both of these laws were challenged and upheld in Pickup v. Brown[4] and King v. Governor of New Jersey,[5] respectively. Although the Ninth and Third Circuits upheld the laws, the level of scrutiny each court applied to the laws differed. The Ninth Circuit’s rational basis analysis ultimately favors opponents of SOCE, but the Third Circuit’s more practical and precise intermediate scrutiny analysis is the better of the two.

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