The 3rd Circuit Court of Appeals has upheld a lower court ruling upholding a New Jersey law that prohibits licensed therapists from offering “ex-gay” reversion therapy to any client under the age of 18. The court did base its ruling on a different analysis than the district court, however, ruling that state regulations on professional speech where licensing is required is allowed under the First Amendment.
“Prohibitions of professional speech are constitutional only if they directly advance the state’s interest in protecting its citizens from harmful or ineffective professional services,” the court said.
The legislature targeted the practice “because it was presented with evidence that this particular form of counseling is ineffective and potentially harmful to clients,” the judges said. Protecting New Jerseyans from ineffective or harmful professional services is “precisely the reason” the law was passed, the court said.
Liberty Counsel, a not-for-profit group that represents the therapists and groups suing, said it will ask the U.S. Supreme Court to review the decision because it conflicts with the California ruling. At issue is whether “counsel by licensed counselors is speech or not,” and the extent to which it’s protected by the First Amendment, the group said in a statement.
The Supreme Court already denied cert in a nearly identical case from the 9th Circuit where the appeals court upheld a similar ban in California, so it seems pretty unlikely that they would accept an appeal in this case.