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CASE NO. 12-17681 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT DAVID PICKUP, CHRISTOPHER H. ROSIK, PH.D., JOSEPH NICOLOSI, PH.D,ROBERT VAZZO, NATIONAL ASSOCIATION FOR RESEARCH AND THERAPY OF HOMOSEXUALITY (NARTH), AMERICAN ASSOCIATION OF CHRISTIAN COUNSELORS (AACC), JOHN DOE 1, by and through JACK AND JANE DOE 1, JACK DOE 1, individually, and JANE DOE 1, individually, JOHN DOE 2, by and through JACK AND JANE DOE 2, JACK DOE 2, individually, and JANE DOE 2, individually, Plaintiffs-Appellants, v. EDMUND G. BROWN, Jr. Governor of the State of California, in his official capacity; ANNA M. CABALLERO, Secretary of the State and Consumer Services Agency of the State of California, in her official capacity, KIM MADSEN, Executive Officer of the California Board of Behavioral Sciences, in her official capacity; MICHAEL ERICKSON, PH.D, President of the California Board of Psychology, in his official capacity; SHARON LEVINE, President of the Medical Board of California, in her official capacity, Defendants-Appellees. and EQUALITY CALIFORNIA, Intervenor-Defendant-Appellee

PRELIMINARY INJUNCTION APPEAL (9TH CIRCUIT RULE 3-3) On Appeal from the Eastern District of California Case No. 2:12-cv-02497-KJM-EFB Honorable Kimberly J. Mueller __________________________________________________________________ PLAINTIFFS-APPELLANTS REPLY BRIEF Mathew D. Staver (Lead Counsel) Anita L. Staver LIBERTY COUNSEL 1055 Maitland Ctr. Cmmns 2d Floor Maitland, FL 32751-7214 Tel. (800) 671-1776 Email court@lc.org Stephen M. Crampton Mary E. McAlister LIBERTY COUNSEL P.O. Box 11108 Lynchburg, VA 24506 Tel. (434) 592-7000 Email court@lc.org Attorneys for Appellants

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TABLE OF CONTENTS ARGUMENT ..1 I. SB 1172 CANNOT PASS ANY STANDARD OF REVIEW.1 A. SB 1172 Is A Viewpoint-Based Restriction And Such Restrictions Have Always Been Found Unconstitutional.1 SB 1172 Is Content-Based And Fails Strict Scrutiny Review......5 1. Even professional regulations are subject to strict scrutiny when they are content-based. .......5 SB 1172 is not justified by a compelling government interest. ...12 SB 1172 is not narrowly tailored to advance the States purported interest. ...15

B.

2.

3.

C.

SB 1172 Cannot Satisfy Intermediate Scrutiny..16 1. Even if SB 1172 were a restriction on conduct, it regulates expressive conduct and intermediate scrutiny applies. ..16 SB 1172 does not advance an important government interest. 18 SB 1172 is targeted at the suppression of the message of SOCE. ..19

2.

3.

D. II.

SB 1172 Cannot Satisfy Rational Basis Review. 21

SB 1172 IS UNCONSTITUTIONALLY VAGUE AND OVERBROAD. ...23 A. SB 1172 Is Unconstitutionally Overbroad. 23 1. Appellants raised overbreadth below and it is not waived. 23
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2.

SB 1172 infringes substantially more speech than is permissible. .24

B.

SB 1172 is Unconstitutionally Vague. 25 1. Even the APA Report recognizes that the term sexual orientation is vague. .25 The reach of SB 1172s prohibition on SOCE is vague. ..26

2.

CONCLUSION .30

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TABLE OF AUTHORITIES CASES Accountants Socy of Va. v. Bowman, 860 F.2d 602 (9th Cir.1988) ..8 Awad v. Ziriax, 620 F.3d 1111 (10th Cir. 2012) 15 Barsky v. Bd. of Regents of Univ. Sys. of State of N.Y., 348 U.S. 442 (1954)..8 Brown v. Entmt Merchants Assn, 131 S. Ct. 2653 (2011)..5, 18, 19 Children of the Rosary v. City of Phoenix, 154 F.3d 972 (9th Cir. 1988)2 Church of the Lukumi Babalu Aye, Inc. v. City of Haleah, 508 U.S. 520 (1993)...14 City of Ladue v. Gilleo, 512 U.S. 43 (1994)....14 City of Lakewood v. Plain Dealer Publg Co., 486 U.S. 256 (1988)..23 Coggeshall v. Mass. Bd. of Registration of Psychologists, 604 F.3d 658 (1st Cir. 2010)...7, 8 Conant v. Walters, 309 F.3d 629 (9th Cir. 2002)..4, 6 Connally v. Gen. Constr. Co., 269 U.S. 385 (1926)30 DiLoretto v. Dowrey Unified Sch. Dist. Bd. of Educ., 196 F.3d 958 (9th Cir. 1998)...2 Florida Bar v. Went For It, Inc., 515 U.S. 618 (1995)..9 Good News Club v. Milford Cent. Sch. Dist., 533 U.S. 98 (2001)2 Intl Socy for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672 (1992).2 Jacobs v. Clark Cnty. Sch. Dist., 526 F.3d 419 (9th Cir. 2008)..12 Lambs Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 394 (1993)1
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Lowe v. SEC, 472 U.S. 181 (1985) ..7 NAACP v. Button, 371 U.S. 415 (1963)..24 Natl Assn for the Advancement of Psychoanalysis v. Cal. Bd. of Psychology, 228 F.3d 1043 (9th Cir. 2000).8, 9 Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012), cert granted 133 S. Ct. 786 (2012)........21 R.A.V. v. City of St. Paul, 505 U.S. 377 (1992)...10 Rosenburger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819 (1995)..1, 10 Schware v. Bd. of Bar Examiners, 353 U.S. 232 (1957)...8 Sorrell v. IMS Health, Inc., 131 S. Ct. 2653 (2011)..............1, 10, 11 Spencer v. Washington, 418 U.S. 405 (1974)..17 Stanley v. Georgia, 394 U.S. 557 (1969)...4 Texas v. Johnson, 491 U.S. 397 (1989).16, 17 Thomas v. Collins, 323 U.S. 516 (1945)...8, 10, 11 Turner v. Broadcasting Sys., Inc. v. FCC, 512 U.S. 622 (1994).13 U.S. v. Kalb, 234 F.3d 827 (3d Cr. 2000)23 U.S. v. Linick, 195 F.3d 538 (9th Cir. 1999)...................23 U.S. v. OBrien, 391 U.S. 367 (1968)17, 18 U.S. v. Playboy Entmt Grp., 529 U.S. 803 (2000)..passim Video Software Dealers Assn v. Schwarzenegger, 556 F.3d 950 (9th Cir. 2009)...13, 22 West Va. State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943)......13, 15
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Witt v. U.S. Dept of Air Force, 527 F.3d 806 (9th Cir. 2008)18 STATUTES Cal. Health & Safety Code 124260 (West 2012)...........20, 21 OTHER AUTHORITIES Fritz Klein, et al., Sexual Orientation: A Multi-Variable Dynamic Process, 11 J. of Homosexuality 35, 44-45 (1985), available at www.tandfonline.com/doi/abs/10.1300/J082v11n01_04..26, 27 James E. Phelan, et al., What Research Shows, NARTHs Response to the APA Claims on Homosexuality, J. of Human Sexuality, Vol. I at 30 (2009), available at www.scribd.com/doc/115507777/Journal-of-Human-Sexuality-Vol-I.. 28 Kim Reyes, Controversy Follows Effort to Ban Gay Conversion Therapy, Orange Cnty. Register. (Aug. 2, 2012), available at www.ocregister.com/articles/therapy-365822-parents-orientation-html21

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ARGUMENT I. SB 1172 CANNOT PASS ANY STANDARD OF REVIEW. SB 1172 is not a mere professional license regulation. It cuts to the heart of the First Amendment by censoring content, and, even worse, the viewpoint of speech on an otherwise permissible subject matter. It cannot survive strict any level of scrutiny. A. SB 1172 Is A Viewpoint-Based Restriction And Such Restrictions Have Always Been Found Unconstitutional.

A viewpoint-based speech restriction has never been upheld by the Supreme Court or any court. A finding of viewpoint discrimination is dispositive. See Sorrell v. IMS Health, Inc., 131 S. Ct. 2653, 2667 (2011). In the realm of private speech or expression, government regulation may not favor one speaker over another. Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 828 (1995). When the government targets not subject matter, but particular views taken by speakers on a subject, the violation of the First Amendment is all the more blatant. Id. at 829 (emphasis added). Viewpoint regulations are always unconstitutional regardless of the forum. Lambs Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 394 (1993) (the First Amendment forbids the government to regulate speech in ways that favor some viewpoints or ideas at the expense of others. (quoting City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 804 (1984)). Speech restrictions are only permissible as
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long as the regulation is not an effort to suppress the speakers activity due to disagreement with the speakers view. Intl Socy for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 679 (1992) (emphasis added). The States power to restrict speech . . . is not without limits. The restriction must not discriminate against speech on the basis of viewpoint. Good News Club v. Milford Cent. Sch. Dist., 533 U.S. 98, 106 (2001) (emphasis added). [A] regulation that is in reality a faade for viewpoint-based discrimination is presumed unconstitutional. Children of the Rosary v. City of Phoenix, 154 F.3d 972, 980 (9th Cir. 1998) (quoting Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 811 (1985)). Even in a nonpublic forum, the government cannot limit expressive activity if the limitation is . . . based on the speakers viewpoint. DiLoreto v. Dowrey Unified Sch. Dist. Bd. of Educ., 196 F.3d 958, 965 (9th Cir. 1999). SB 1172 is viewpoint-based because it allows counselors to discuss and clients to hear about the subject of sexual orientation, behavior, or identity (hereafter SSA), but precludes a particular viewpoint on that subject, namely that SSA can change. SB 1172 silences one viewpoint (change) on an otherwise permissible subject (SSA). Sexual orientation change efforts (SOCE) in SB 1172 are defined as counseling that seeks to eliminate or reduce sexual or romantic attractions or feelings towards individuals of the same sex. (ER 00436) (emphasis
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added). SOCE does not include psychotherapies that: (A) provide acceptance, support, and understanding of clients or facilitation of clients coping, social support, and identity exploration and development, including sexual orientationneutral intervention . . . and (B) do not seek to change sexual orientation. (Id.) (emphasis added). By failing to marshall any argument to the contrary, the State and Equality California (EC) tacitly concede that SB 1172 is viewpoint-based. This concession is fatal. As a viewpoint restriction, SB 1172 is unconstitutional under any circumstance. The context does not matter when viewpoint discrimination of private speech is involved, and Appellees have failed to refute this argument, which is not surprising, because SB 1172 is viewpoint discriminatory, and no viewpoint restriction has ever been upheld by any court. If a law is viewpoint discriminatory, there is no need to inquire into the governments purported justifications. Any justifications are irrelevant to a determination of whether private speech can be prohibited merely because the government disagrees with the viewpoint espoused on an otherwise permissible subject. The viewpoint of counselors that some clients are best served by counsel to reduce or eliminate unwanted SSA is silenced. But counselors can provide counsel to affirm SSA. Counsel affirming SSA or even encouraging experimentation with SSA is permitted. Counsel to reduce or eliminate unwanted SSA is banned. The
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subject of SSA is permitted so long as only one viewpoint is expressed. Hostility towards a particular viewpoint is insufficient to prohibit a particular viewpoint on a permissible subject matter. This case is controlled by Conant v. Walters, 309 F.3d 629 (9th Cir. 2002), where the government regulation restricted the speech of physicians already engaged in the practice of medicine and only because of a disagreement with the message about medical marijuana. The policy does not merely prohibit the discussion of marijuana; it condemns expression of a particular viewpoint. Id. at 637. Viewpoint discrimination is prohibited regardless of the purported justifications. The viewpoint discrimination involving counselors applies equally to minors and their parents. SB 1172 permits them to hear only one viewpoint on the subject of SSA. The right to hear information is the flipside of the right to speak. Stanley v. Georgia, 394 U.S. 557, 564 (1969). SB 1172 discriminates against the viewpoint of the speaker and those who have a right to hear that viewpoint. Minors and their parents are only permitted to receive counsel that affirms SSA, even though they desperately seek counsel to help them change or reduce SSA. SB 1172 permits one viewpoint and condemns the opposite viewpoint. The State has gone far beyond regulation of the profession to taking sides on one viewpoint of an otherwise permissible subject. SB 1172 must be enjoined.
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B.

SB 1172 Is Content-Based And Fails Strict Scrutiny Review.

Even if SB 1172 were not viewpoint-based, which it is, but only a contentbased restriction, it still cannot withstand strict scrutiny. Appellees admit, as they must, that SB 1172 restricts the content of speech regarding SSA. (ER 00436). Statutes such as SB 1172 that regulate on the basis of content are presumptively invalid and can only be upheld if California can demonstrate that it passes strict scrutinythat is, unless it is justified by a compelling government interest and is narrowly drawn to serve that interest. Brown v. Entmt Merchants Assn, 131 S. Ct. 2729, 2738 (2011).1 It is rare that a regulation restricting speech because of its content will ever be permissible. United States v. Playboy Entmt Grp., 529 U.S. 803, 818 (2000). The burden is on the State to prove it satisfies strict scrutiny, but the State cannot meet that burden. Id. at 813. 1. Even professional regulations are subject to strict scrutiny when they are content-based.

Even professional regulations are subject to heightened scrutiny when the regulation is content-based. Appellees own authorities support heightened scrutiny. Judge Shubb recognized that SB 1172 is subject to strict scrutiny (ER 00108). Amici American Civil Liberties Union correctly recognized that heightened scrutiny is required. (Dkt. 36, ACLU-NC Br. at 2) (ACLU-NC strongly disagrees with the district courts analysis in Pickup that the First
1

See Appellants Opening Br. at 34-39.

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Amendment does not apply to regulation of doctor-patient speech and that only rational basis review applies to plaintiffs medical autonomy claims.). In Conant, the ACLU argued that professional regulations similar to SB 1172 require the application of strict scrutiny, even in the context of the doctorpatient relationship. See Brief for Appellant, Conant v. Walters, 309 F.3d 629 (9th Cir. 2001) (No. 00-17222), 2001 WL 34121081 at *22. First Amendment protection remains as robust in the examination room as in any other context regardless of whether the doctors opinion is at odds with the governments official position. Id. (emphasis added). The ACLU argued that the strong First Amendment interest in uncensored physician-patient speech mandates that the government not pursue its policy goals by interfering with physicians medical advice simply because the government thinks it sends the wrong message. Id. at *23. Indeed, [t]he First Amendment protects the right of physicians to disagree with the governments orthodoxy and to make that disagreement known to their patients not just in the context of a general political discussion but in the more relevant context of providing sound medical advice. Regardless of official government policy on such sensitive questions as . . . sexual practices, physicians must remain free to discuss these questions with their patients and to provide their patients with their considered medical opinions and recommendations free of government restrictions having nothing to do with medicine and everything to do with politics. Id. at 25-26. Contrary to what Amici ACLU-NC argues here, its sound constitutional argument in Conant applies with equal force to SB 1172, and it
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should suffer the same fate as the regulation in Conant. This Court should hold that SB 1172 is an unconstitutional infringement on the fundamental relationship between a doctor/counselor and patient/client. Disagreement with the content of the message espoused in counseling cannot suffice to infringe on the relationship between a doctor and an informed and consenting patient. Appellees cite cases that stand for the unremarkable proposition that a state may regulate minimum qualifications for entrance into a profession. Not one of them stands for the proposition that all professional regulations only require rational basis review. Justice Whites concurrence in Lowe, cited by EC, actually supports Appellants position that heightened scrutiny is required when a regulation of the profession implicates speech and not entrance into the profession. Lowe v. SEC, 472 U.S. 181, 229-30 (1985). [T]he principle that government may restrict entry into the profession and vocation through licensing schemes has never been extended to encompass the licensing of speech. Id. (emphasis added). At some point, a measure is no longer a regulation of a profession but a regulation of speech . . . beyond that point, the statute must survive the level of scrutiny demanded by the First Amendment. Id. In Coggeshall v. Mass. Bd. of Registration of Psychologists, 604 F.3d 658 (1st Cir. 2010), the First Circuit stated, as EC notes (ECs Br. at 14), that [s]imply
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because speech occurs does not exempt those who practice a profession from state regulation. Coggeshall, 604 F.3d at 667. This assertion does not support ECs argument that all professional regulations are subject only to rational basis review. Coggeshall did not discuss the standard of review for professional regulations, so that case is of no import here. All the cases cited by Appellees (States Br. at 2223; ECs Br. at 14) deal solely with minimum qualifications for entrance into the profession. Accountants Socy of Va. v. Bowman, 860 F.2d 602, 605 (4th Cir. 1988); Schware v. Bd. of Bar Examiners, 353 U.S. 232, 239 (1957); Barsky v. Bd. of Regents of Univ. of State of N.Y., 348 U.S. 442, 450-51 (1954). Appellees improperly conflate regulations governing entrance into a profession with those unconstitutionally infringing on the speech of professionals already licensed. They cite National Association for the Advancement of Psychoanalysis v. California Board of Psychology, 228 F.3d 1043 (9th Cir. 2000) (NAAP), where this Court upheld a content-neutral regulation concerning the minimum competency and education level for entrance into the mental health profession. NAAP, 228 F.3d at 1055. [T]he state may prohibit the pursuit of medicine as an occupation without its license, but I do not think it could make it a crime publicly or privately to speak urging persons to follow or reject any school of medical thought. Id. (quoting Thomas v. Collins, 323 U.S. 516, 545 (Jackson, J., concurring)).
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In NAAP, three individuals failed to meet the minimum qualifications of a doctoral degree, entrance exam passage, and two-years residency. Id. at 1048. Two plaintiffs failed for having only master degrees and the other for lack of the requisite residency. Id. The plaintiffs challenged the law as a violation of their right to free speech. This Court recognized the States authority to regulate entrance into the profession, and subjected it to rational basis review because it was contentneutral and not adopted because of any disagreement with psychoanalytical theories. Id. at 1056. SB 1172 does not regulate minimum entrance requirements. It prohibits the constitutionally protected speech of those mental health professionals who already satisfy the minimum entrance requirements and dictates what can be said. In Conant, this Court struck down a government regulation restricting the speech of physicians because of disagreement with the message conveyed about medical marijuana. 309 F.3d at 637 (the policy does not merely prohibit the discussion of marijuana; it condemns expression of a particular viewpoint). SB 1172 condemns all counsel under any circumstance to reduce or eliminate SSA. (ER 00436). Being a member of a regulated profession does not, as the government suggests, result in a surrender of First Amendment rights. Id at 637. Indeed, professional speech may be entitled to the strongest protection our Constitution has to offer. Id. (citing Florida Bar v. Went For It, Inc., 515 U.S. 618 (1995)).
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This is especially true when the regulation at issue is presumptively invalid. See R.A.V. v. City of St. Paul, 505 U.S. 377, 382 (1992); see also Rosenberger, 515 U.S. at 829. The State concedes that SB 1172 is content-based and seeks to justify the restriction by citing Justice Breyers dissent in Sorrell v. IMS Health Inc., 131 S. Ct. 2653 (2011) (States Br. at 34), while ignoring the majority opinion. In Sorrell, the law was directed at the professional speech of pharmaceutical salespersons. The law on its face burden[ed] disfavored speech by disfavored speakers. 131 S. Ct. at 2663. That is precisely what SB 1172 does here: it burdens disfavored speech by disfavored speakers. The Sorrell Court found the law was designed to impose a specific, content-based burden on protected expression. Id. at 2664. As such, heightened judicial scrutiny [was] warranted. Id. The State in Sorrell contended, as Appellees do here, that heightened scrutiny was not warranted because the regulations targeted conduct, not speech. Id. at 2666. It also contended that the speech of these professionals had adverse consequences on the public. Sorrell rejected these arguments, and this Court should also reject them. Those who seek to censor or burden free expression often assert that disfavored speech has adverse effects. But the fear that people would make bad decisions if given truthful information cannot justify content-based burdens on speech. Id. at 2670-71. Here, no one is being deceived by Appellants counseling.
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The minors and parents receive detailed information and consent to the counsel they seek to reach their objective. (See, e.g., ER 00378).2 The States belief that SOCE is ineffective for some is insufficient to ban the practice. The choice between the dangers of suppressing information, and the dangers of its misuse if it is freely available is one that the First Amendment makes for us. Id. at 2671 (citations omitted). EC likewise argues that professional regulations cannot be subject to heightened scrutiny and cites a concurring opinion in Thomas v. Collins, 323 U.S. 516 (1945). Thomas supports the opposite conclusion. In Thomas, the State argued that its law was merely a regulation of business practices and subject only to rational basis. Id. at 527. The Court rejected the States argument that rational basis applied and noted that [t]he idea is not sound therefore that the First Amendments safeguards are wholly inapplicable to business or economic activity. Id. at 531. While a State has an interest in protecting the public from demonstrably harmful business practices, its regulations must not trespass upon the domain set
2

Amici California Association of Marriage and Family Therapists, California Psychological Association, California Psychiatric Association, and the California Association for Licensed Professional Clinical Counselors (Collectively Counseling Associations) objected to a version of SB 1172 almost identical in relevant part and proposed an Informed Consent provision instead of a ban on SOCE. (Amici, Counseling Associations, Dkt. 59, 59-2, Exh. A). This proposed informed consent is virtually identical to the informed consent AppellantCounselors provided to the Minors and Parents.
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apart for free speech. Id. at 532. When it does, as SB 1172 does, heightened scrutiny is required. Even the concurrence of Justice Jackson, cited by this Court and EC, recognized that it cannot be the duty, because it is not the right, of the state to protect the public against false doctrine. The very purpose of the First Amendment is to foreclose public authority from assuming a guardianship of the public mind through regulating the press, speech, and religion. Id. at 545 (Jackson, J., concurring). SB 1172 runs far afield of these principles. SB 1172 punishes licensed counselors and their clients on the basis of the content of their counselor-client communications. (ER 00483). Only counselorclient conversations that include content designed to reduce or eliminate SSA trigger disciplinary action. (Id.). Because SB 1172 is a content-based restriction on speech, it is subject to strict scrutiny. Jacobs v. Clark Cnty. Sch. Dist., 526 F.3d 419, 431 (9th Cir. 2008). 2. SB 1172 is not justified by a compelling government interest.

Appellees base their defense of the law upon an alleged consensus, pointing primarily to the 2009 Task Force Report of the American Psychological Association (Report) and on policy statements of various mental health organizations, which are not supported by studies but are political stances, none of which prohibit SOCE.

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The First Amendment requires a more careful assessment and characterization of an evil in order to justify a regulation as sweeping as this. Playboy Entmt, 529 U.S. at 819. When the government seeks to restrict speech, [i]t must demonstrate that the recited harms are real, not merely conjectural. Video Software Dealers Assn v. Schwarzenegger, 556 F.3d 950, 962 (9th Cir. 2009) (quoting Turner Broadcasting Sys., Inc. v. F.C.C., 512 U.S. 622, 664 (1994)) (emphasis added). This is especially true when the States own sources admit there is no concrete evidence of harm caused by SOCE. (ER 00264). [F]reedom of speech . . . may not be infringed on such slender grounds. They are susceptible of restriction only to prevent grave and immediate danger to interests which the state may lawfully protect. West Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 639 (1943) (emphasis added). The Report found some evidence of both alleged harm and benefits produced by SOCE. (ER 00271-72). Notably, sexual minority adolescents are underrepresented in research on evidence-based approaches, and sexual orientation issues in children are virtually unexamined. (ER 00313) (emphasis added). The Report concluded there is a dearth of scientifically sound research on the safety of SOCE. Early and recent research studies provide no clear indication of the prevalence of harmful outcomes . . . because no study to date of scientific rigor has been explicitly designed to do so. (ER 00264) (emphasis added). The only
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evidence of harm was anecdotal some individuals reported being harmed by SOCE. (ER 00312). This will not suffice as a justification to ban speech, as the government must present more than anecdote and supposition to support its burden of proof. Playboy Entmt, 529 U.S. at 822. The continued availability of SOCE counseling further reveals that SB 1172 is not supported by a compelling interest. SB 1172 prohibits licensed counselors from SOCE with minors, but the same counselor can counsel adults. Unlicensed counselors can offer SOCE to minors and adults. At a minimum, SB 1172 is underinclusive. City of Ladue v. Gilleo, 512 U.S. 43, 52 (1994). This underinclusiveness proves the States interest is not compelling. If the government fails to enact feasible measures to restrict other conduct producing substantial harm or alleged harm of the same sort, the interest given in justification of the restriction is not compelling. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 546-47 (1993) (emphasis added). [A] law cannot be regarded as protecting an interest of the highest order . . . when it leaves appreciable damage to that supposedly vital interest unprohibited. Id. at 547. Appellees assertions about consensus ignore the American Association of Christian Counselors, an organization with 50,000 members. (ER 00390). The only justification for calling AACC members out of the mainstream is disagreement with their views.
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The First Amendment does not depend on a show of hands. Indeed, [t]he very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of a political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. Ones right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections. Barnette, 319 U.S. at 638 (emphasis added). SB 1172 infringes the constitutionally protected rights of Appellants. The State does not have a compelling reason to restrict the content of speech a counselor speaks or a client seeks to hear. 3. SB 1172 is not narrowly tailored to advance the States purported interest.

Total prohibitions on constitutionally protected speech are hardly an exercise of narrow tailoring. See Awad v. Ziriax, 670 F.3d 1111, 1131 (10th Cir. 2012). A complete prohibition on SOCE by licensed professionals under any circumstances for any minor is not the least restrictive means to achieve the governmental interest. A complete ban can hardly meet the least restrictive means test, especially when the main source relied upon by the State (the Report) acknowledges there is evidence that SOCE is beneficial to some who seek such counsel and the only evidence of alleged harm is at best anecdotal. Even if the State had a compelling interest, which it does not, that interest could be achieved in a less restrictive manner. The Counseling Associations recommended a less restrictive alternative that continued to allow SOCE with
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informed consent. (Amici, Counseling Associations, Dkt. 59-2, Exh. A). The fact the Counseling Associations were willing to go on record that SOCE could continue so long as informed consent was provided undercuts the States purported interest in banning SOCE altogether and is indisputable proof that informed consent is a less restrictive alternative. SB 1172 therefore fails strict scrutiny. C. SB 1172 Cannot Satisfy Intermediate Scrutiny.

Appellees argue that SB 1172 is merely a regulation of professional conduct. This assertion is erroneous, but, if this Court were to find that SB 1172 regulates only conduct, then it is nevertheless expressive conduct and intermediate scrutiny would apply.3 1. Even if SB 1172 were a restriction on conduct, it regulates expressive conduct and intermediate scrutiny applies.

The Supreme Court has recognized that conduct may be sufficiently imbued with elements of communication to fall within the scope of the First and Fourteenth Amendments. Texas v. Johnson, 491 U.S. 397, 404 (1989). In deciding whether particular conduct possesses sufficient communicative elements to bring the First Amendment into play, we have asked whether an intent to convey a particular message was present, and [whether] the likelihood was great

Judge Shubbs well-reasoned and comprehensive analysis reveals that SB 1172 is subject to strict scrutiny even if merely a conduct regulation. (See ER 00113-18).
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that the message would be understood by those who viewed it. Id. at 406-07 (quoting Spence v. Washington, 418 U.S. 405, 410-11 (1974)). It is beyond question that the Appellant-Counselors intend to convey the message that minors struggling with unwanted SSA can eliminate or reduce them. Mental health counselors would not engage in this type of counsel if they did not intend to communicate that change is possible. Their clients seek them out because of that message. (ER 00402; 00407). It is certain they understand the message and the message is their sole reason for seeking SOCE counseling. If this Court finds that SB 1172 regulates only conduct, then it is expressive conduct, which must satisfy the heightened standard of intermediate scrutiny. [W]hen speech and nonspeech elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms. U.S. v. OBrien, 391 U.S. 367, 376 (1968).4 Because the communication involved in SOCE is expressive, SB 1172 can survive only if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to

SB 1172 does not impose an incidental restriction on constitutionally protected speech. It imposes a complete prohibition on protected speech.
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the furtherance of that interest. Id. at 377. Appellees have not and cannot satisfy this burden. 2. SB 1172 does not advance an important government interest.

SB 1172 does not advance an important government interest. SB 1172 is grounded solely on political ideology. (ER 00479-80). SB 1172 was also based on the APA Report, which found that insufficient evidence existed to conclude SOCE was harmful to adults, and no evidence regarding minors. (ER 00264). Indeed, the Report concluded that there was evidence to support benefits produced by SOCE. (ER 00224-25; 00264). The Report also acknowledged that sexual orientation issues in children are virtually unexamined. (ER 00313). The basis for supporting an important government interest cannot be speculative or anecdotal. See Witt v. U.S. Dept of Air Force, 527 F.3d 806, 819 (9th Cir. 2008) (hypothetical, post-hoc rationalizations are insufficient to establish an important government interest); Playboy Entmt, 529 U.S. at 822 (the government must present more than anecdote and suspicion). No doubt a State possesses legitimate power to protect children from harm . . . but that does not include a free floating power to restrict ideas to which children may be exposed. Brown v. Entmt Merchants Assn, 131 S. Ct. 2729, 2736 (2011) (citations omitted).

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The States interest in protecting children is unsupported by evidence of harm. Disagreement with the notion that unwanted SSA can be changed is not sufficient to justify a complete ban on the expressive communications of Appellants. Speech that is neither obscene as to youths nor subject to some other legitimate proscription cannot be suppressed solely to protect the young from ideas or images the legislative body thinks unsuitable for them. Id. A political objection to a certain message the legislature finds disagreeable cannot suffice as an important government interest, especially when such legislative animus is unsupported by the evidence. 3. SB 1172 is targeted at the suppression of the message of SOCE.

Appellees admit that SB 1172 regulates content. (States Br. at 56; ECs Br. at 28-32). Speech regulation is not an incidental part of the law. It is the very heart of SB 1172. EC equates laws imposing discipline due to malpractice claims with claims regarding talk therapy. (Id. at 30). But SOCE has never been a violation of any ethical standards and only will become so if SB 1172 is permitted. SOCE does not qualify as a therapy that violates established professional or ethical standards. (Id.). No code of ethics or law anywhere other than SB 1172 bans SOCE. SB 1172 is directly related to the opinions of a counselor concerning whether SOCE can assist a person struggling with unwanted SSA. Mental health
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professionals are permitted to counsel clients concerning SSA and affirm same, but they cannot counsel change for unwanted SSA. The counselor is required to present only one message, namely, that SSA should not be resisted, and cannot be stopped, reduced, or otherwise managed. By explicitly mentioning SSA and LGBT youth, SB 1172 clearly aims to ban only the message that seeks to change non-heterosexual sexual orientations. (See ER 00478-79). That this is the actual meaning of SB 1172 cannot be seriously doubted. SB 1172 is targeted at any counsel under any circumstance that seeks to change SSA. As the language of the bill and ECs comments make clear, SB 1172s sole aim is the suppression of the message communicated in SOCE counseling with minors seeking to reduce or eliminate unwanted SSA. That SB 1172 is intended to suppress that message is made even more evident by the timing of its passage. Appellants have practiced SOCE for decades without any effort to prohibit them. Many of the position statements referenced in SB 1172 and the APA Report upon which it is based have also been around for years, yet there were never any legislative efforts before now to ban SOCE. If the alleged harm occasioned by this counseling has been clear for years, as Appellees suggest, then it is curious why there have never been any efforts before now, especially since in 2009 the legislature passed a law that minors 12 and older can consent to any and all counseling, including SOCE. Ca. Health & Safety Code
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124260(b) (West 2012). It is beyond question that SB 1172 was specifically targeted at suppressing the message espoused in SOCE counseling, especially since Sen. Lieu, the primary sponsor, watched a program on TV and then worked with EC to draft SB 1172. Kim Reyes, Controversy Follows Effort to Ban Gay Conversion Therapy, Orange Cnty. Register. (Aug. 2, 2012), available at www.ocregister.com/articles/therapy-365822-parents-orientation-html. See also Perry v. Brown, 671 F.3d 1052, 1079-80 (9th Cir. 2012), cert granted 133 S. Ct. 786 (2012) (The action of changing something suggests a more deliberate purpose than does the inaction of leaving it as it is.). The restriction on speech is not incidental, and thus the OBrien intermediate test does not apply. SB 1172 is viewpoint-based and ipso facto unconstitutional. At a minimum, strict scrutiny applies under a content-based standard. But even if the regulation is merely incidental to the conduct and OBrien applied, SB 1172 cannot survive intermediate scrutiny. D. SB 1172 Cannot Satisfy Rational Basis Review.

SB 1172 cannot withstand even rational basis review. The State does not have a rational basis for a complete prohibition on constitutionally protected speech. The State and EC wrongly allege that all SOCE counseling is based on the premise that homosexuality is a disorder in need of treatment. (States Br. at 10;
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ECs Br. at 5). The issue is not whether unwanted SSA is a mental disorder, but whether a client seeking counseling is experiencing distress because of unwanted SSA. To counsel someone with distress does not mean the counselor assumes the person is suffering from a mental disorder. Many stressors are not classified as mental health disorders, but are routinely addressed in counseling, such as addictions, grief, or infidelity. Someone undergoing grief or depression after losing a loved one does not have a mental disorder, but may be in need of counseling. The State cannot base its prohibition of SOCE on this false premise and bolster it with inconclusive studies of harm. The legislature must demonstrate that the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way. Video Software Dealers, 556 F.3d at 962. (citation omitted). As such, SB 1172 cannot pass rational basis. The APA Report acknowledges that SOCE involving minors is virtually unexamined. (ER 00313). The Report also points out there is evidence that SOCE on adults is beneficial and that reports of harm on some adults is merely anecdotal. (ER 00271-72, 00312). This lack of evidence does not provide a rational basis to completely ban SOCE involving minors. It is irrational to ban SOCE with minors when the practice has been permitted for decades, there is no research on minors, there is evidence of benefit for adults, and any reports of harm on some adults is merely anecdotal.
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II.

SB 1172 IS UNCONSTITUTIONALLY VAGUE AND OVERBROAD. A. SB 1172 Is Unconstitutionally Overbroad. 1. Appellants raised overbreadth below and it is not waived.

Appellants raised overbreadth in the Complaint and in Argument I.B. in the Memorandum of Law in Support of Preliminary Injunction (SB 1172 on its face and as applied, is impermissibly vague and overbroad as it requires professionals subject to its dictates to guess at its meaning and differ as to its application.) (ER 00466; Dist. Ct. Dkt. 28 at 12). The District Court also inquired about overbreadth at the hearing. (ER 00055). Moreover, unbridled discretion claims are challenges to the overbreadth of a statute. See U.S. v. Linick, 195 F.3d 538, 542 (9th Cir. 1999) (We thus find that [the regulation] vests the Forest Service with unbridled discretion to deny expressive activity and is therefore overbroad.) (emphasis added); see also U.S. v. Kalb, 234 F.3d 827, 833-34 (3d Cir. 2000) (citing City of Lakewood v. Plain Dealer Publg Co., 486 U.S. 750, 754 (1988) for the proposition that a law is overbroad if it gives government officials substantial discretion to discriminate on the basis of viewpoint). Appellants raised overbreadth and have not waived this argument. SB 1172 is overbroad because it completely bans under any circumstances counsel to any minor that seeks to change or reduce SSA, even when the minor and

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the parents seek and consent to such counsel. Instead of using a scalpel, the State took a chain saw to the First Amendment. 2. SB 1172 infringes substantially more speech than is permissible.

Because First Amendment freedoms need breathing space to survive, government may regulate in the area only with narrow specificity. NAACP v. Button, 371 U.S. 415, 433 (1963). Laws as broad as SB 1172 are constitutionally suspect, because the courts cannot assume that, in its subsequent enforcement, ambiguities will be resolved in favor of adequate protection of First Amendment rights. Id. at 438. SB 1172 states that under no circumstances may a counselor engage in any practices to reduce or eliminate SSA in minors. The breadth of this prohibition is astounding, and renders SB 1172 unconstitutionally overbroad. SB 1172 cannot be upheld as a legitimate regulation of mental health. Indeed, it is no answer to the constitutional claims asserted by petitioner to say . . . that the purpose of these regulations was merely to insure high professional standards and not to curtail free expression. For a State may not, under the guise of prohibiting professional misconduct, ignore constitutional rights. Id. at 438-39 (emphasis added). SB 1172 bans Appellant-Counselors from providing counsel to Appellant-Clients who knowingly, with informed consent, seek counsel to change SSA, which includes romantic attractions, behavior (even if it is risky), identity, speech, and mannerisms. This ban is an unprecedented
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restriction of psychotherapy. (Amici, Counseling Associations, Dkt. 59-2, Exh. A, May 2, 2012 Letter). The State took a cannon to kill a gnat. SB 1172 goes far beyond a narrow, or even reasonable, restriction on speech. Regulation of speech requires more care and precision than SB 1172 provides. B. SB 1172 is Unconstitutionally Vague.

Appellees ignore many of the conclusions of the APA Report upon which SB 1172 is based. They also ignore the fact that the term sexual orientation change efforts is vague concerning its application to various methods of protected communication. Even more telling, the Counseling Associations opposed virtually identical language to the passed version of SB 1172 because it was vague. (Amici, Counseling Associations, Dkt. 59-2, Exh. A); see also Reply Br. Statutory Addendum (comparing the amended language to the prior language); full text available at California Legislative Information, SB 1172 Sexual orientation change efforts (2012), leginfo.legislature.ca.gov/faces/billNacClientxhtml.. 1. Even the APA Report recognizes that the term sexual orientation is vague.

The APA Report stated that [s]ame-sex sexual attractions and behavior occur in the context of a variety of sexual orientations and sexual orientation identities, and for some, sexual orientation identity (i.e., individual or group membership and affiliation, self-labeling) is fluid or has an indefinite outcome. (ER 00224) (emphasis added). [R]ecent research on sexual orientation identity
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diversity illustrates that sexual behavior, sexual attraction, and sexual orientation identity are labeled and expressed in many different ways, some of which are fluid. (ER 00236). If the APA Report cannot accurately define sexual orientation, or if it is fluid and thus changeable, then SB 1172 is certainly vague. 2. The reach of SB 1172s prohibition on SOCE is vague.

Appellees argue that counselors may give their opinion about SSA but may not engage in a practice to change the clients SSA. Does that mean a counselor can offer an opinion to one client one time, but offering that opinion over a course of several months crosses the line? What does engage in a practice mean? Appellees agree that engaging in a practice to change SSA is banned, but they never articulate where the line separates a single expression of an opinion from a practice. Appellants have no idea where that line is drawn. At what point does helping a client meet his or her objective to change SSA cross the line? The APA Report admits SSA is fluid, which, no matter the debate over enduring change, it is clear that SSA can change. Studies reveal that sexual orientation is not static. See Fritz Klein, et al., Sexual Orientation: A MultiVariable Dynamic Process, 11 J. of Homosexuality 35, 44-45 (1985), available at www.tandfonline.com/doi/abs/10.1300/J082v11n01_04 (there is a significant difference between a persons past, present, and ideal sexual orientation). Contrary to the theoretical notion that one becomes fixated in childhood, the
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sexual orientation of the individuals in this study often changed remarkably. Id. at 45. SB 1172 prohibits any counsel under any circumstance to change SSA. If SSA is fluid, then it is changeable. Given that SSA is capable of change, then why does the law prohibit change therapy? If an unhappy homosexual client engages the counselor because he wants to be bisexual, does the counselor violate SB 1172 by providing counsel that helps the client develop sexual attraction for both sexes? Or does the counselor violate the law only when the counsel offered seeks to change the client to be exclusively heterosexual? SB 1172 prohibits any counsel to change SSA. What are AppellantCounselors to do when clients return after hearing their opinion that SSA can change and asks the counselor to help them meet their self-determined objective to change their SSA? If the clients seek change, and if the Report admits SSA is fluid, and thus changeable, then why are counselors and clients prohibited from pursuing change? Where is the line drawn? What is permitted and what is not? The licenses of the Appellant-Counselors are on the line. They and thousands of other counselors and clients have no idea how to avoid these landmines. This uncertainty is made worse by the nature of ethical complaints, and the prospect that a client might perceive the distribution of such materials or counsel as intended to reduce or eliminate SSA. SSA in some minors spontaneously
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disappears without any counsel. See James E. Phelan, et al., What Research Shows, NARTHs Response to the APA Claims on Homosexuality, J. of Human Sexuality, Vol. I at 30 (2009), available at www.scribd.com/doc/115507777/Journal-ofHuman-Sexuality-Vol-I. If a minor experiences unwanted SSA, must the counselor override the minors right to self-determination and advise the client to accept what the minor rejects? If SSA is fluid and can spontaneously disappear, then the counselor potentially violates SB 1172 no mater how careful the counselor may be about not violating the law because the clients SSA may change at any time. It does not make sense to ban change therapy when the client may be undergoing change anyway. In order for the law to have any validity in light of the fact SSA is often fluid, wouldnt it have to ban only coerced or forced change efforts, in which case a proper informed consent would be an appropriate response rather than a complete ban? The State licensing entity objected that the definition of SOCE was vague, and only changed its position after a minor amendment, which amendment did not provide any further clarification of what is prohibited. (Amici, Counseling Associations at 25-27, Dkt. 59-2, Exh. B) (the Board respectfully requests that the term sexual orientation change efforts be more precisely defined.). The Counseling Associations also objected, stating that the definition of SOCE is ambiguous and vague as to what kinds of therapy conceptually fall under the
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definition of SOCE. (Amici, Counseling Associations at 25-27, Dkt. 59-2, Exh. A). Indeed, it is an unprecedented restriction of psychotherapy. Id. The initial definition of SOCE was practices by mental health providers that seek to change sexual orientation or reduce or eliminate sexual or romantic attractions, feelings, or behaviors because those attractions, feelings, or behaviors are directed toward persons of a particular sex or both sexes. See Reply Br. Statutory Addendum. The amendment defined SOCE as any practices by mental health providers that seek to change an individuals sexual orientation. This includes efforts to change behaviors or gender expressions, or to eliminate or reduce sexual or romantic attractions or feelings towards individuals of the same sex. Id. The amended language is nearly identical to the previous language. Id. Nothing was added or removed that clarified the extent to which SOCE applied to various practices. SB 1172 remains vague. Appellants fear they will be subject to discipline for merely disseminating educational information regarding SSA and effective therapeutic treatment for those with unwanted SSA. (ER 00373). Such material is distributed in the counseling context, and it could be viewed as a practice aimed at reducing or eliminating SSA. Some Appellants have videos and websites with information concerning SOCE. (ER 00387). The State brushes this aside by saying that it is not the type of personalized care prohibited by SB 1172 (States Br. at 44), but does
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not explain why this is not a practice that seeks to change SSA. Directing clients to resources on a website that provide information about changing SSA appears to cross the line, but precisely where the line is remains unclear. SB 1172 does not say personalized care, but rather broadly prohibits any practices. If the videos contain SOCE, then they arguably cross the line. A law is unconstitutionally vague if ordinary people must necessarily guess at its meaning and differ as to its application. Connally v. General Const. Co., 269 U.S. 385, 391 (1926). Counselors and clients alike must guess at the meaning of SB 1172, and government officials will differ as to its application. As such, SB 1172 is unconstitutionally vague and should be enjoined. CONCLUSION This Court should reverse the district courts order, find that SB 1172 is unconstitutional and continue to enjoin the law. Dated: February 19, 2013. Mathew D. Staver (Lead Counsel) Anita L. Staver LIBERTY COUNSEL 1055 Maitland Ctr. Commons Second Floor Maitland, FL 32751-7214 Tel. (800) 671-1776 Fax: (407) 875-0770 Email court@lc.org Attorneys for Appellants
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/s/ Mary E. McAlister Stephen M. Crampton Mary E. McAlister Daniel J. Schmid LIBERTY COUNSEL P.O. Box 11108 Lynchburg, VA 24506 Tel. 434-592-7000 Fax: 434-592-7700 Email court@lc.org Attorneys for Appellants

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CERTIFICATE OF SERVICE I hereby certify that I have this 19th day of February, 2013, I filed the foregoing Motion electronically through the CM/ECF system, which caused the following counsel to be served by electronic means, as more fully reflected in the Notice of Electronic Filing: Attorneys for Defendants-Appellees: KAMALA D. HARRIS, TAMAR PACHTER PAUL STEIN ALEXANDRA ROBERT GORDON DANIEL POWELL 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102-7004 Telephone: (415) 703-5740 Fax: (415) 703-1234 E-mail: Paul.Stein@doj.ca.gov alexandra.robertgordon@doj.ca.gov Daniel.Powell@doj.ca.gov

MUNGER, TOLLES & OLSON LLP 355 South Grand Ave, 35th Floor Los Angeles, CA 90071-1560 Telephone: (213) 683-9100 Facsimile: (213) 687-3702 MICHELLE FRIEDLAND Michelle.Friedland@mto.com MUNGER, TOLLES & OLSON LLP 560 Mission St, 27th Floor San Francisco, CA 94105-2907 Telephone: (415) 512-4000 Facsimile: (415) 512-4077 SHANNON MINTER SMinter@nclrights.org CHRISTOPHER STOLL cstoll@nclrights.org NATIONAL CENTER FOR LESBIANRIGHTS 870 Market Street, Suite 360 San Francisco, CA 94102 Telephone: (415) 392-6257 Facsimile: (415) 392-8442

Attorneys for Defendant-Intervenor Equality California: DAVID C. DINIELLI David.Dinielli@mto.com LIKA C. MIYAKE Lika.Miyake@mto.com BRAM ALDEN Bram.Alden@mto.com

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Dated: February 19, 2013.

Mathew D. Staver (Lead Counsel) Anita L. Staver LIBERTY COUNSEL 1055 Maitland Ctr. Commons Second Floor Maitland, FL 32751-7214 Tel. (800) 671-1776 Fax: (407) 875-0770 Email court@lc.org Attorneys for Appellants

/s/ Mary E. McAlister Stephen M. Crampton Mary E. McAlister Daniel J. Schmid LIBERTY COUNSEL P.O. Box 11108 Lynchburg, VA 24506 Tel. 434-592-7000 Fax: 434-592-7700 Email court@lc.org Attorneys for Appellants

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Certificate of Compliance With Type-Volume Requirements, and Type Style Requirements

Limitation,

Typeface

1. This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B)because: this brief contains 6,992 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii), or this brief uses a monospaced typeface and contains____ lines of text, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii). 2. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5)and the type style requirements of Fed. R. App. P. 32(a)(6) because: this brief has been prepared in a proportionally spaced typeface using Microsoft Word 2010, Times New Roman 14 point , or this brief has been prepared in a monospaced spaced typeface using _____ with_______. /s/ Mary E. McAlister Attorney for Plaintiffs-Appellants February 19, 2013.

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STATUTORY ADDENDUM The definition of sexual orientation change efforts that the Counseling Associations and the Board of Behavioral Sciences objected to in May 2012: (b) Sexual orientation change efforts means practices by mental health providers that seek to change orientation or reduce or eliminate sexual or romantic attractions, feelings, or behaviors because those attractions, feelings, or behaviors are directed toward persons of a particular sex or both sexes. Sexual orientation change efforts does not include psychotherapies that aim to provide acceptance, support, or understanding of clients or the facilitation of clients coping, social support, and identity exploration or development, without seeking to change orientation or reduce or eliminate sexual or romantic attractions, feelings, or behaviors because those attractions, feelings, or behaviors are directed toward persons of a particular sex or both sexes.1 The definition of sexual orientation change efforts in the July 2012 version signed into law and challenged herein is as follows: (b)(1) Sexual orientation change efforts means any practices by mental health providers that seek to change an individuals sexual orientation. This includes efforts to change behaviors or gender expressions, or to eliminate or reduce sexual or romantic attractions or feelings towards individuals of the same sex. (2) Sexual orientation change efforts does not include psychotherapies that: (A) provide acceptanc support, and understanding of clients or the facilitation of clients coping, social support, and identi exploration and development, including sexual orientation-neutral interventions to prevent or address unlawf conduct or unsafe sexual practices; and (B) do not seek to change sexual orientation.2

California Legislative Information, SB 1172 Sexual orientation change efforts (2012), available at leginfo.legislature.ca.gov/faces/billNacClientxhtml. 2 Id.
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