First Amendment rights
The legislation does not restrict any protected First Amendment speech. It prohibits discredited treatments by state-licensed mental health care professionals.
The legislation does not apply to clergy or to individuals who provide religious instruction. It also does not prevent anyone from publishing, discussing, or advocating any viewpoints or beliefs regarding sexual orientation or gender identity.
The proposed legislation lawfully regulates the provision of health care to the most vulnerable of our citizens – our minor children.
“The state’s authority over children’s activities is broader than over like actions of adults . . . A democratic society rests, for its continuance, upon the healthy, well-rounded growth of young people into full maturity as citizens, with all that implies.” Prince v. Massachusetts, 321 U.S. 158, 168 (1944). Thus, the Supreme Court “ha[s] sustained legislation aimed at protecting the physical and emotional well-being of youth even when the laws have operated in the sensitive area of constitutionally protected rights.” New York v. Ferber, 458 U.S. 747, 757 (1982).
The legislation regulates only professional therapy, which is a form of medical treatment that is highly regulated to protect the public’s health and safety. We expect the state to regulate potentially dangerous medical treatments, and this is no exception.
For example, if a state-licensed orthopedic surgeon elected to treat a patient’s compound fracture of the tibia with an hour of talk therapy rather than surgery, the state would be justified in taking action against the surgeon, even though their offense falls squarely within the realm of speech. Similarly, a state-licensed psychologist cannot counsel an anorexic patient to continue losing weight and expect that treatment to be protected speech.
The Supreme Court’s precedents have long drawn a line between speech and conduct. As the Supreme Court most recently held in June 2018, “States may regulate professional conduct, even though that conduct incidentally involves speech.” The proposed legislation is a regulation of conduct, not speech.
The proposed legislation does just one thing: it requires licensed mental health providers in Georgia who wish to engage in “practices . . . that seek to change a [minor’s] sexual orientation” either to wait until the client turns 18 or be subject to professional discipline. The proposed legislation lawfully regulates the provision of health care to the most vulnerable of our citizens – our minor children.