Can the Feds End LGBT Conversion Therapy?
Ending LGBT conversion therapy used to seem a long way off.
Four states and the District of Columbia have banned attempts to change the sexual orientation or gender identity of minors, but similar bans in states like Colorado, Hawaii, Maryland, and Virginia have recently failed.
But following a legal victory in New Jersey last year, LGBT advocacy groups may have just found the silver bullet to put a stop to the practice: consumer fraud law.
On Wednesday, the Human Rights Campaign (HRC), National Center for Lesbian Rights (NCLR), and the Southern Poverty Law Center (SPLC) jointly filed a federal consumer fraud complaint with the Federal Trade Commission (FTC). They argue that conversion therapy isn’t just harmful; it’s a clear case of false advertising.
The consumer fraud complaint specifically addresses the claims of the Virginia-based nonprofit People Can Change Inc. (PCC), which hosts “Journey Into Manhood” weekends for gay men seeking to change their sexual orientation. The PCC website boasts that there are “more than 3,000 [published] cases of change from homosexual to heterosexual attraction, identity, and functioning.”
“Is change really possible?” one PCC page asks. “Absolutely!” was the response until the day after the consumer fraud complaint, when it was quietly changed to a less enthusiastic “Yes.” (An archived version of the original claim can still be accessed online.)
If you trust the combined wisdom of the American Psychiatric Association, American Psychological Association, American Medical Association, and the American Academy of Pediatrics, “absolutely” was a flat-out lie. These medical associations have made it clear that conversion or “reparative” therapy is scientifically unproven, discriminatory, and often politically motivated.
The American Psychological Association, for instance, noted in 2010 that many practitioners of conversion therapy are “embedded within the larger context of conservative religious political movements that have supported the stigmatization of homosexuality on political or religious grounds.”
But this medical consensus has not yet made its way into federal law. And that’s where the FTC could come into play.
According to the HRC, NCLR, and SPLC, conversion therapy should be considered illegal under Section 5 of the Federal Trade Commission Act, which prohibits “unfair or deceptive acts or practices in or affecting commerce.”
The FTC considers an act to be “deceptive” if it involves a material “representation, omission, or practice that is likely to mislead the consumer,” so long as it would affect “a consumer acting reasonably in the circumstances.”
The HRC, NCLR, and SPLC argue that PCC should be considered “deceptive” because it represents conversion therapy as being effective when it is not.
The deception, they note, begins with the group’s name: People Can Change. It continues throughout their website and marketing materials. There are claims that 75 percent of the men who go on a Journey into Manhood retreat have a “decrease in homosexual feelings,” brochures that claim 4 out of 5 participants have a “reduction in [same-sex attraction],” and pseudoscientific claims that sexual orientation can be “change[d]” or “shift[ed].”
Importantly, the FTC determines whether or not a practice is deceptive from the perspective of the particular group to whom it is advertised.
In this case, as the LGBT advocacy organizations note in their complaint, the target demographic for conversion therapy is “more vulnerable than the average consumer.” These therapies are often directed at children, young adults, and others who may be under social, familial, or religious pressure to deny an LGBT identity. And as an American Psychological Association Task Force noted, conversion therapy can lead to “loss of sexual feeling, depression, suicidality, and anxiety.” LGBT people, especially youth, are already at an increased risk of suicide.
If the FTC agrees with this reasoning it could theoretically stop PCC’s business in its tracks and, at the urging of the LGBT advocacy groups, “investigate all [other] practitioners making similar claims.”
There are 24 organizations in the Positive Approaches to Healthy Sexuality (PATH) conversion therapy coalition, which as recently as 2015 was still called Positive Alternatives to Homosexuality. Many of them are religiously affiliated and all of them would be on notice if the FTC decides to act on the complaint against PCC.
The SPLC has already had success with this legal reasoning. In a landmark New Jersey court case last June, it successfully represented young gay men who were told that the organization Jews Offering New Alternatives for Healing (JONAH) had a “two-thirds success rate” in suppressing “unwanted same-sex sexual attractions.”
What those men experienced was bizarre and by no means scientific. For example, one of the plaintiffs claimed that the “life coach” he found through JONAH asked him to beat an effigy of his mother with a tennis racket, as The Atlantic reported.
The SPLC argued that this was a clear case of consumer fraud, and in a first-ever court decision on the practice of conversion therapy, the New Jersey jury agreed. They ruled that JONAH had “engaged in unconscionable commercial practices” and ordered the group to pay out over $70,000 in refunds. It has since shut down entirely.
With this ruling in hand, the consumer fraud angle has become the weapon of choice for LGBT advocates.
Last May, California Rep. Ted Lieu (D) introduced a bill proposing a nationwide ban on conversion therapy “as an unfair and deceptive act or practice,” citing the FTC Act.
This month, members of Congress, led by Senators Cory Booker (D-NJ) and Patty Murray (D-WA), also sent a letter to FTC Chairwoman Edith Ramirez, urging her “to take all actions possible to stop the unfair, deceptive, and fraudulent practice of conversion therapy under the authority provided to your agency.”
It’s a brilliant strategy that just might work: If federal and state governments won’t protect LGBT people as people, perhaps they can protect them as consumers.