California is considering a bill that would make it easier for people to sue licensed mental health professionals who practice conversion therapy. The bill could serve as another way of making it harder to practice the form of anti-LGBTQ+ torture in the state if courts ultimately overturn state conversion therapy bans.

S.B. 934, introduced by out state Sen. Scott Wiener (D), would extend the statute of limitations for suing for conversion therapy to 22 years, and those 22 years start the moment the victim turns 18. It allows victims to seek damages for medical expenses, mental health treatment costs, lost wages, pain and suffering, emotional distress, loss of enjoyment of life, and attorney’s fees, as well as punitive damages for fraud, if they can prove their case in court.

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The bill defines conversion therapy as “efforts to direct a patient toward a particular sexual orientation or a particular gender identity” and only applies to licensed mental health providers and the entities that employ them.

The bill was introduced in January, several months after oral arguments in the Supreme Court case of Chiles v. Salazar showed that the Court might rule against state-level conversion therapy bans. In that case, a licensed therapist in Colorado sued her state, arguing that the state’s ban on conversion therapy violated her free speech rights since she only practiced talk therapy.

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Last month, the Court sided with the Christian therapist, agreeing that the words a therapist utters during a therapy session are protected by the First Amendment. In the 8-1 decision, the Court sent the case back to the lower courts to reexamine it in light of a new, higher standard of proof imposed on the state, which will make it much harder for the state to keep its conversion therapy ban. But Colorado’s conversion therapy ban remains in place for now.

While 27 states and hundreds of municipal governments have banned conversion therapy, LGBTQ+ advocates point out that none of these laws have ever been used to shut down a conversion therapy practice. Even Colorado’s law, which was passed in 2019, was never enforced.

A big part of the issue is that these laws only apply to licensed mental health providers when, in reality, most conversion therapy is practiced by members of the clergy, lay ministries, or unlicensed coaches. But state and municipal governments are reluctant to pass laws banning or restricting religious practices out of fear of running afoul of the First Amendment.

The Supreme Court’s decision in Chiles said that laws that allow people to sue for malpractice do not violate free speech rights the same way as conversion therapy bans do, citing technical safeguards for free speech in the case of, for example, a doctor who recommends patients take up smoking and then gets sued for malpractice. So S.B. 934 could function as a workaround for the Supreme Court decision.

But S.B. 934 contains the same exemption for religious practices that other conversion therapy bans do, and therefore will not help the vast majority of conversion therapy victims.

Wiener said that he was inspired to introduce S.B. 934 after hearing oral arguments in Chiles and seeing that California’s conversion therapy ban “was very much at risk.”

“It’s quackery, it’s torture, and it should be banned,” he told the San Francisco Chronicle. “And if we can’t ban it, we should at least give people the tools to seek compensation from the people who inflicted this harm on them.”

Shannon Minter, the legal director of the National Center for LGBTQ Rights, said that he believes the Court’s decision in Chiles will “strengthen legal protections for young people who are harmed by conversion therapy.” He believes that S.B. 934’s extension of the statute of limitations will be helpful since it sometimes takes young LGBTQ+ people years to understand the damage that conversion therapy caused them.

“What we see over and over again from survivors of conversion therapy is it often takes them many years to understand that the problem was not that they personally failed, it was that this therapy was harmful and does not work,” he told the Chronicle, adding that the new bill “could in some ways be a more effective deterrent.”

Moreover, allowing private individuals to sue could increase enforcement since the state has had little interest in enforcing its current conversion therapy ban.

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