California’s 2012 conversion therapy ban for minors may not survive the current Supreme Court’s scrutiny. Sacramento lawmakers aren’t waiting to find out.
Sen. Scott Wiener, a San Francisco Democrat, is pushing a bill that reframes the fight entirely. Instead of banning the practice outright through speech restrictions, his proposal gives survivors of conversion therapy a longer runway to sue the mental health professionals who subjected them to it. Under the bill, victims would have up to 22 years to file a malpractice claim, or within five years of first recognizing the harm done to them, depending on how old they were when the treatment occurred. The Senate Judiciary Committee voted 10-to-2 on Tuesday to move it forward, splitting along party lines.
The shift in strategy isn’t accidental. Last month, the U.S. Supreme Court ruled 8-to-1 in a case involving Kaley Chiles, a Colorado Christian therapist who sued over her state’s conversion therapy ban. Chiles argued the prohibition violated her First Amendment rights by preventing her from discussing sexual orientation change with clients who actively wanted that outcome. The court didn’t strike down Colorado’s law outright but sent the case back down to lower courts. The problem for California and the 20-plus states with similar laws: Justice Neil Gorsuch’s majority opinion signaled that bans like these can’t clear the “strict scrutiny” bar that applies to speech regulations.
California was first. The state enacted its ban on conversion therapy for minors in 2012, and that law became the template dozens of other states copied. Gorsuch’s reasoning doesn’t invalidate those statutes immediately, but it puts them on shaky ground. Wiener’s malpractice bill sidesteps the constitutional problem by targeting the practice as consumer fraud and professional misconduct rather than prohibited speech.
“You can’t change someone who is LGBTQ into not being LGBTQ,” Wiener said at the Senate Judiciary Committee hearing.
That’s not a contested claim in mainstream medicine. Major medical organizations, from the American Medical Association to the American Psychological Association, have condemned conversion therapy for decades. The practice grew from a now-discredited view that homosexuality was a diagnosable disorder. Studies connect it to elevated rates of depression and suicidal ideation, particularly in adolescents. Wiener leaned into that record during the hearing.
“All major medical associations agree that sexual orientation and gender identity are immutable characteristics, and that so-called conversion therapy is fraud that harms patients.”
He drew a parallel to the Legislature’s prior move to extend the statute of limitations for survivors of child sexual abuse, arguing conversion therapy victims deserve equivalent legal standing. It’s a frame that shifts the argument away from what therapists are allowed to say and toward what they’re allowed to do to vulnerable patients who can’t yet fully process the damage.
The legal complications don’t disappear under the malpractice approach, though. Elana Redfield, federal policy director at UCLA’s Williams Institute, told committee members that the Supreme Court’s recent reasoning cuts at the core justification states have offered for these bans.
“What this decision is essentially saying is that it doesn’t matter that states have an interest in regulating the quality of care for their patients,” Redfield told the committee.
The Chiles ruling gives therapists a potential shield. Gorsuch’s opinion emphasized that a licensed professional’s speech doesn’t lose constitutional protection simply because money changed hands or a license was issued.
“Her right to express herself doesn’t stop when she steps into her office and practices her profession that is licensed by the state.”
That framing is what makes the malpractice route potentially more durable. Wiener isn’t telling therapists they can’t talk. He’s telling them they’ll face civil liability if patients later demonstrate harm. It’s a distinction that may matter enormously when these statutes end up before federal judges applying Gorsuch’s reasoning.
The bill, according to initial reporting, now heads to the full Senate after Tuesday’s committee vote. Whether the malpractice framework survives its own legal challenges is a question no one in Sacramento can answer yet. What’s clear is that Wiener is betting the civil courts can do what speech restrictions increasingly can’t.