First published in the Lake Champlain Weekly
Written by Quentin Langley
New York is one of seven states which, along with the District of Columbia, have either banned or restricted “conversion therapy” for gay people. Now there is a proposal in Congress to classify all such therapy as “fraud”. Which raises the question, if it is fraud, why does it need to be banned? Fraud is already illegal.
The answer is simple. Gay conversion therapy is many things – ineffective, for example, and often harmful – but it is not fraud. For someone to be convicted of fraud prosecutors would have to show, beyond reasonable doubt, not only that the practice is ineffective, but that the practitioner knows this. It would be very easy to produce a parade of respectable scientists to testify that a person’s underlying sexual orientation cannot be changed, but this is not the same as saying that the “therapist” offering the service believes that. You could similarly produce scientists to testify against astrology and homeopathy, but a prosecution for fraud would still fail.
In medicine, however, there is a long tradition of regulation which says that some ineffective treatments are banned anyway. Drug companies must demonstrate through extensive trials that their products – many of which have significant side-effects – are effective at treating illness or they simply cannot be sold as medicines. Homeopathy is not subject to such regulation, but then homeopathic treatments have no side-effects. They have no effect at all other than placebo, because the treatment is literally nothing but a small dose of water.
Some forms of gay conversion therapy are potentially harmful, creating serious psychological conditions. For parents to inflict such harm on minor children is potentially child abuse. But for something to be prosecuted as fraud a special law needs to be created, suspending the normal definition of fraud in this singular instance.
But what if an adult wishes to pursue such therapy? Surely this is as legitimate as voluntarily submitting to acupuncture (as this columnist has done) or homeopathy or any other unproven therapy rejected by science?
To complicate things further, although there is consensus among experts in the field that a person’s orientation cannot be changed by any of these therapies, people can change their behavior. Your columnist can see no good reason why people should wish to, but there is no doubt that some people do wish to, and that many millions of people see reasons for them to do so. Many religions preach that gay sex is wrong and there would be serious – probably insuperable – constitutional barriers to legislation which sought to ban people from advocating this view or counseling people against gay sex.
The only thing legislation is likely to do is to stop people from claiming a scientific basis for “therapies” which most scientists reject. If a priest, rabbi or imam wishes to preach against various sexual – and indeed dietary – behaviors, and set up “support” groups to urge behavior change, there is little that the law can or should do about it.
People can perhaps be restricted from falsely claiming there is a scientific consensus behind their treatments, but that is already covered in the law of fraud.
Quentin Langley lives in New York and London and teaches at the University of Bedfordshire Business School. He is the author of Brandjack: How your reputation is at risk from brand pirates and what to do about it