In recent years, there has been an explosion of campaigns to ban conversion therapy for sexual orientation and gender identity. In conflicts waged in state and federal courts and legislatures, advocates have advanced and defended two distinct types of ban. The first—and the most widespread—prohibits conversion therapy for minors. These bans are premised on the notion that such practices are inherently coercive and have been proven to present serious risks to a child’s mental and physical health. The second type entails a much more blanket approach that adds conversion therapy practices to existing anti-fraud legislation. California, Connecticut, the New York City Council, and the U.S. Senate have considered versions of this legislation that would make conversion therapy unavailable for minors and adults seeking reorientation or management of their sexuality or gender.
In promoting these bans, LGBTQ+ advocates have made use of a massive network of scientific and medical allies that the movement has accrued over the past half century. National LGBTQ+ interest groups like the Human Rights Campaign (HRC) and the National Center for Lesbian Rights (NCLR), for instance, have enlisted their allies in pediatric mental health care, psychiatric and psychological professional associations, and various medical organizations in educative campaigns and legal and political fights to end these therapeutic practices. They have done so by incorporating these experts into legal arguments, legislative testimonies, advocacy literature, and political cultural discourse more generally.
Battles over conversion therapy bans offer a view into how scientists, nonprofit leaders, litigators, and activists have worked together to construct and deploy increasingly biological conceptions of sexual and gender identities from the mid-twentieth century to the present. In exploring the history and present of conversion therapy and competing theories of sexual orientation and gender identity, the following account combines perspectives from American politics and political identity formation studies with Science and Technology Studies (STS) and Foucauldian concepts like co-production and biopolitical citizenship. It does so in the pursuit of understanding how scientific and medical ideas and institutions have become foundational to the character of American LGBTQ+ politics and campaigns for equal rights. It also examines how—despite the clear power and successes that such relationships have engendered—these developments have also led to overextensions of scientific authority and epistemology that have consequences for gender and sexual autonomy, self-determination, and democratic governance that extend both from the principles and political commitments of liberal pluralists and adherents of more postmodern traditions like queer theory.
While ban campaigns have proven successful by many standard measures—nearly half of the country is now covered by state and municipal bans on conversion therapy for minors—they also present some serious limitations. In the realm of constitutional law, First Amendment religious liberty and free speech protections offer opponents several means of evading a total regulation of conversion practices. Despite the recent achievements made in passing numerous bans on conversion therapy at the state level, and the recent introduction of a similar law in Congress, such bans do not encompass the realm of religious counselors and clergy who are still free to offer such services as long as they are not acting in their capacity as a licensed clinician. These and other religious liberty-based challenges to conversion therapy restrictions are part of a larger constellation of First Amendment free exercise claims against certain rights protections, especially LGBTQ+ ones. Just as social conservatives and other defenders of religious liberty have made these types of arguments against the requirement of merchants to provide wedding services to gay and lesbian couples, to deny such couples their adoption rights, to restrict the extent of protections in the American Disabilities Act (ADA), and to avoid federal regulations pertaining to employer health insurance coverage, such claims have become central to limiting the scope of these bans.Footnote 1
Additionally, the religious liberty-themed opposition has allied with groups operating on the fringes of clinical care and biomedical research which continue to promote conversion therapy as a legitimate medical practice. Advocates of conversion therapy often take aim at the LGBTQ+ movement’s prevailing bioessentialist “born this way” articulation of sexual and gender identities, which rests on the premise that genetics, brain structures, and hormonal balances play a determinative role in what it means to be a man or a woman, gay or straight, cisgender or trans. In opposition to this principle of essence, practitioners of conversion therapy have begun to mobilize competing scientific theories of sexual fluidity and neuroplasticity in attempts to re-legitimate their own programs. These researchers and clinicians suggest that the frontier of neurological knowledge points in the opposite direction of innate, immutable, and unchanging sexual orientations and gender identities and instead toward the possibility of reorientation for those who pursue it. Together, these forces are presently attempting to shift the balance of power back to conversion therapy-friendly scientists and practitioners whose authority has steadily shrunk since the late 1970s.
Beyond these constitutional limitations and marginal medical theories, conflicts over bans illuminate a much broader array of pitfalls that attend the modern LGBTQ+ movement’s approach to scientific authority and subjectivity. They throw into relief just how deep disagreements over the nature of authority, autonomy, trauma, and essence are between ban proponents and those social conservatives and queer skeptics alike who do not subscribe to the dominant perspective. Though contested, the notion that LGBTQ+ identities are stable, discrete, and innate in some significant respect is currently poised to expand from the realm of liberal advocacy into codified law through ban legislation. In doing so, it may further entrench what critics deem a constricted view of what constitutes the good (queer) life and who has the authority to proclaim its contours. Such scientific renderings of sexuality and gender also trade in the same conceptual logics, methodologies, and paradigms employed by a range of liberal “race realists” in population genetics and ancestry DNA testing (Bliss Reference Bliss2018; Reich Reference Reich2018; Saini Reference Saini2019). Though these bioreductive sensibilities just as often serve as a discursive vector for those justifying liberal tolerant beliefs as they do intolerant ones, they sit uncomfortably beside parallel arguments made by revanchist right-wing forces (Suhay and Jayaratne Reference Suhay and Jayaratne2013; Schneider, Smith, and Hibbing Reference Schneider, Smith and Hibbing2018; Murray Reference Murray2020).
The first two sections of the paper lay out a theoretical and empirical framework for studying political identity construction and the constitutive role that scientific ideas and authority can play in the development of an identity-based social movement. The next section examines the history and present of the conversion therapy paradigm, noting how concepts like abuse and trauma, coercion and autonomy, and essence and authority have been wielded and transformed in the process. The case study section then details legislative and judicial developments at the state and federal level, focusing mainly on California. I conclude with thoughts on how LGBTQ+ rights advocates might avoid or even transcend this biopolitical mode of subjectivity and the heavy investment in scientific authority as a dominant means of securing legal rights and full citizenship.
Science and Subjectivity: Biomedical Ideas and Institutions in Social Movement Politics
Since the 1950s, sexual and gender minorities have sought out allies in scientific and medical circles to contest the pathological model and to offer alternative theories of their desires and experiences. As these relationships have expanded and deepened over the past several decades, professional associations and researchers have come to erect a reliable layer of defense against assaults on civil rights as well as to provide resources for offensive political maneuvers in the pursuit of expanded rights and recognition. Due to this intertwining of the scientific and the political, scholars of LGBTQ+ social movement politics and the science of sex and gender must now integrate conceptual and methodological approaches from a wide range of theories and literatures in order to fully comprehend their subjects of study.
By blending perspectives from American politics and American political development (APD), political identity studies, and Science and Technology Studies, scholars might better grasp both the micro-level relationships and decision-making between scientific and political actors as well as the global picture of long trends of political development and political identity formation more clearly. Thus, the framework here builds on and extends the insights of a broad interdisciplinary literature that has yet to provide a comprehensive account of these dynamics or to establish their consequences for the study of political identity, social movements, and the politics of scientific research and authority more generally (Terry Reference Terry1999; Stein Reference Stein1999; Minton Reference Minton2002; Lancaster Reference Lancaster2003; Walters Reference Walters2014; Waidzunas Reference Waidzunas2015). In doing so, it demonstrates how seemingly extra-political institutions and ideas such as those in the sciences can become so deeply embedded in political networks and institutional developments that their theories and pronouncements cannot be understood independent of their association with those social movement forces. The reverse is true as well: the LGBTQ+ movement’s political history, its contemporary policy and legal agenda, and the very sense of identity that coheres its mission cannot be disentangled from its scientific and medical allies. Rather than existing as powerful auxiliaries that are invoked occasionally, these scientific allies are foundational to the movement’s politics and its articulation of its members’ shared peoplehood (Smith Reference Smith2015).
Recent scholarship has begun to place sexuality and gender politics in the scope of American political development studies in ways that are beneficial for studying such intertwined institutional and ideational forces. Stephen Engel’s (Reference Engel2016) work on the “fragmented” nature of LGBT citizenship that results from overlapping, sometimes conflicting, orders of governance implores scholars to turn their attention to the political role of seemingly non-political institutions like scientific research endeavors and funding schemes as well as biomedical ideas and institutions. Though political scientists, historians, and legal scholars have attended to these dynamics in the late-nineteenth and early-twentieth century United States, very little work exists on how new “modalities of recognition” have been formed in the process of the LGBTQ+ movement’s advocacy for protections against discrimination, especially through the use of external institutions and discourses such as those in the sciences (Canaday Reference Canaday2009; Valelly Reference Valelly2012). Science and technology studies (STS) scholars like Sheila Jasanoff (Reference Jasanoff2004) have provided tools and concepts for studying how scientific and political actors come to shape one another, adopt one another’s discourses, conduct scientific inquiry together, and engage in joint legal and political projects. What Jasanoff terms the forces of co-production illustrates how the LGBTQ+ movement has worked to construct a conception of innate, stable, and relatively mutually-exclusive gender and sexual identities, which it has deployed in venues including campaigns, courtrooms, legislatures, and bureaucracies.
Other STS and related works on biotechnology and the rise of new scientific paradigms also bear on questions of political identity formation. Fueled by an array of state-academic funding opportunities, the creation of new disciplines like behavioral genetics, and developments in private biotechnology industry, bioessentialist studies on the etiology of sexual orientation and gender identity have proliferated (Sunder Rajan Reference Sunder Rajan2006; Cooper Reference Cooper2008; Panofsky Reference Panofsky2014; Richardson and Stevens Reference Richardson and Stevens2015). Since the late twentieth century when geneticists, endocrinologists, and neuroscientists began probing the human body for the supposed essence of identity, LGBTQ+ political and legal forces—as well as the media—have popularized and politicized these conceptions to such an extent that they are now largely taken as common sense (Garretson and Suhay Reference Garretson and Suhay2016). As a result, these scientific renderings and pronouncements presently play a consequential role in determining the contours and legibility of sexual and gender subjects and their rights claims. And despite a previous generation of critics who doubted the bioessentialist project’s ability to accommodate categories beyond those homonormative gay and lesbian ones, recent developments in trans politics demonstrate that the paradigm is relatively adept at absorbing new categories and infusing them with a bioessentialist logic (Epstein Reference Epstein1987; Halley Reference Halley1994; Knauer Reference Knauer2003; Gill Reference Gill2014).
Looking also to the literature on biopolitics and biopolitical citizenship, the LGBTQ+ movement’s reliance on scientific and medical authority has consequences for how the state, society, and individuals themselves come to perceive and articulate conceptions of self and identity. Since Michel Foucault’s (Reference Foucault1990) adoption of the term, biopolitics has been the dominant framework through which political and social theorists have grappled with these varying and interwoven power relations and resultant subjectivities. Whereas the scholarly work that generally flies under the banner of biopolitics—and more recently studies in biopolitical citizenship—are usually concerned with political conflicts within the domain of public health and medical bureaucracies, the case of the LGBTQ+ movement demonstrates that certain identity-based interest groups have also taken a scientific and medical approach to undergird their rights claims (Petryna Reference Petryna2002; Rose Reference Rose2006; Epstein Reference Epstein2007; Happe, Johnson, and Levina Reference Happe, Johnson and Levina2018).
So, what does all of this scientific authority do? What is the nature and reach of its political and discursive power, especially in the decades since scientific authority moved from merely exposing the invalidity of the pathological model and onto the much more difficult task of exploring the etiological “truth” of sexuality and gender?
Public opinion and social movement scholars have long attempted to pinpoint whether those who accept the biological narrative have come to support LGBTQ+ rights due to that previously-held view or, rather, if socially liberal persons are more likely to accept the biological narrative because they perceive it as linked to such support. A new line of research has suggested that attribution theory—the idea that individuals come to their political opinions about a group or issue based on their underlying beliefs about causes or origins—is merely capturing a correlation that is best explained by the uptake of narratives that match an individual’s existing commitments to expanded rights (Lewis Reference Lewis2009; Garretson and Suhay Reference Garretson and Suhay2016; Suhay and Garretson Reference Suhay and Garretson2018). Additionally, recent research from attribution theory’s proponents considers the historical developments that have led to partisan polarization on gay rights issues and the narratives of causation that have accompanied them (Haider-Markel and Joslyn Reference Haider-Markel and Joslyn2008, Reference Haider-Markel and Joslyn2013). Thus, while the relationship between political tolerance and knowledge of a phenotype’s biological fixity reveals more of rationalizing phenomenon than a causal one, it is clear that bioessentialist notions have become useful for communicating a message of acceptance and civil rights for LGBTQ+ persons.
Additionally, scientific and medical authority has featured prominently in LGBTQ+ interest group and civil rights litigation organizations’ crafting of legal argumentation and assembling expert testimonials for judges, bureaucrats, and legislators (Keen and Goldberg Reference Keen and Goldberg2000; Diamond and Rosky Reference Diamond and Rosky2016; Ziegler Reference Ziegler2016). It is worth noting that these advocacy efforts do not necessarily reflect either the narratives of identity that characterize the experience of actual LGBTQ+ persons or their policy preferences (Whisman Reference Whisman1995; Diamond Reference Diamond2008).Footnote 2 The modern gay and lesbian interest groups that emerged in the early 1970s were representative of a larger turn in American civic life away from federated mass membership organizations and toward the more donor-dependent professional advocacy firms and non-profits that characterize interest group politics today (Skocpol Reference Skocpol2003; Strolovitch Reference Strolovitch2007; Hindman Reference Hindman2018).
The bioessentialist narratives advanced by these professional advocacy organizations and their allies in the sciences appear to have some sway before courts. For instance, judges for the U.S. Court of Appeals for the Eleventh Circuit and former Supreme Court Justice Anthony Kennedy have cited statements and evidence on the immutability of gay and lesbian identities approvingly.Footnote 3 In his majority opinion in Obergefell v. Hodges, Kennedy wrote that “far from seeking to devalue marriage, the petitioners seek it for themselves because of their respect—and need—for its privileges and responsibilities. And their immutable nature dictates that same-sex marriage is their only real path to this profound commitment … Only in more recent years have psychiatrists and others recognized that sexual orientation is both a normal expression of human sexuality and immutable.”Footnote 4 The ACLU and the National Center for Lesbian Rights too have won a series of cases before federal district and appellate courts in which they presented neuroanatomical evidence for the fixity of transgender identity (Wuest Reference Wuest2019).
In more recent state legislative conflicts, mental health professionals and researchers have been instrumental in successfully fighting back laws that would prohibit physicians from providing gender-affirmative medical treatment for minors (Bosman and Smith Reference Bosman and Smith2020). In legislative hearings in states like South Dakota and Florida, these restrictions on care have been opposed by healthcare professionals proclaiming the benefits of such care for the realization of a child’s gender identity. These developments are in many ways only the most recent instances in which political and legal advocates have mobilized biological theories of child sexuality or gender for such aims. Since the late 1970s, groups like the National LGBTQ+ Task Force have encouraged litigators to pique a judge’s curiosity about the etiology of sexual orientation, therein opening an opportunity to introduce the biological narrative (National Gay Task Force 1979; George Reference George2016).
Despite its clear utility across a range of issues and domains, this biopolitical form of citizenship has been attended by political and constitutional limitations as well as normative objections. Looking more specifically at the conversion therapy ban issue, advocates have used scientific authority and appeals to the health and dignity of would-be conversion therapy patients which feature two separate yet overlapping themes. The first category of arguments relies on studies of the harm and trauma that are associated with conversion therapy practices. They point to rates of depression and suicide risk as reasons to oppose such clinical intervention.
The second approach involves deeper essentialist renderings of LGBTQ+ identity categories, those which are downstream from decades of neurological, genetic, and endocrinological research upon which contemporary “born this way” notions of identity rest. In terms of method, replicability, and scientific and medical consensus, this collection of theories and studies is much more contested and controversial than those dealing more narrowly with the harm associated with conversion therapy. Though analytically—and at times practically—distinct, the essentialist form often underlies the premises of the trauma narrative. While the trauma narrative is not reducible to an etiological claim, ban advocates often assert that such harm is the result of an external force attempting to reorient something that is stable, essential, even innate to the individual.
Religious liberty-based objections to conversion therapy bans throw the bounds of this approach into sharp relief. As long as a professionally-licensed clergy member or other religious counselor is acting as a mental health professional and not in their spiritual capacity, then the state is well within a legitimate use of its police powers to prevent these unduly coercive and demonstrably harmful practices to be performed under the guise of mental healthcare. But if conversion therapy or counseling is offered by clergy or a lay minister as a spiritual matter rather than clinical care, then such moral instruction is outside the bounds of state intervention. According to a 2019 Williams Institute on Sexual Orientation and Gender Identity Law and Public Policy report, up to 57,000 youth ages 13–17 will receive conversion therapy from a religious figure before they turn 18. Debates over autonomy and essence are central to bans that protect minors as they are premised on an inherent coercive element to treatment, one which inhibits their autonomy. Though related to theories of essence—minors here are presumed by advocates to be LGBTQ+—they are less dependent than adult fraud bans are on bioessentialist notions.
In the case of those proposed anti-fraud legislative bans, however, the issue of autonomy for adults seeking conversion therapy resources is elided entirely. There is no recognition of autonomy in these cases because the law prohibits adults from attempting to manage or reorient desire if such an attempt involves a financial transaction. Moreover, these bans are further limited by the appeals of those who assert that—regardless of whether they possess an interior, deeply-rooted non-hetero sexual orientation—they seek such therapy in order to control or to manage their behavior. The adult here is governed biopolitically in that the state imperative to ensure population health becomes married to an individual’s desire. Accordingly, the law compels queer identity to be realized, or at the very least it restricts medicine and the market from providing the means to prevent its realization. In this sense, the biopolitical script has been flipped. Whereas in the past the gay and lesbian argument against such therapies rested in large part on the various social, economic, and political coercive influences that led them into the clinician’s office, conversion therapy proponents now loudly demand their right to have these options made available to them.
Additionally, queer theory skeptics and outright critics of liberal pluralism find such strong assertions of (bio)essence antithetical to their own conceptions of queer experience. In noting Justice Kennedy’s link between the immutability of gay identity and the supposedly universal desire to couple in monogamous, state-sanctioned marriages, Cyril Ghosh (Reference Ghosh2018) chastised the Court for imposing a one-size-fits-all model of a “good intimate life.” Similarly, anti-fraud bans deny adults access to mental health professionals or peer-support groups who offer assistance in managing one’s desires; they do so in framing such prohibitions as a misrecognition—even an abrogation—of their “true” selves. Though many queer theorists would likely find something quite amusing in the notion that desire might be controlled, it is clear that this normative tradition rejects outright both an essentialist logic and a state apparatus governing according to such a logic (Bersani Reference Bersani1996).
Other scholars of trans identity have noted the strictures and distortions inherent in the “born this way” narrative. In the words of political theorist Nina Hagel, such theories “may uphold untenable ideals of self-knowledge and self-congruence,” which have a negative impact on children who vacillate in and out of varied modes of gender expressions (Hagel Reference Hagel2017, 600). Sociologist Tey Meadow (Reference Meadow2018) too has noted the dynamic processes by which gender and sexual identities come to be adopted by children. In a study of gender identity clinicians who sometimes impose a bioessentialist framework in their practices, medical anthropologist Sahar Sadjadi (Reference Sadjadi2019) criticizes the reductive view that leads clinicians to doubt a child’s trans experience the moment they show up for therapy wearing gender-conforming underwear.Footnote 5 When these rigid conceptions of identity predominate in the clinic, case law, and policymaking, they can foreclose the very possibility of genderfluidity or periods of questioning that may or may not lead a child or adult to adopt an LGBTQ+ identity. Rather than nonconformity outright presenting the greatest obstacle, it is uncertainty with which the paradigm is incapable of comprehending.
Just as the essence narrative was at one point the dominion of those who categorized homosexuality and transsexuality as signs of a degenerative state, warnings of trauma and suicidality too were once the province of opponents of LGBTQ+ rights. As late as the 1980s, child psychiatrists assisted the state in justifying the termination of gay schoolteachers’ employment contracts due to the suspected self-harm or suicidality risks that their presence might have for “confused” children (Graves Reference Graves2009). Again, a near complete flip has transpired. Any and all attempts—imposed or volitional—are now characterized as traumatic. Empirically, the trauma narrative’s validity is the least suspect when it comes to outright coercion of minors (Green et al. Reference Green, Price-Feeney, Dorison and Pick2020; Turban et al. Reference Turban, Beckwith and Reisner2020). However, there are empirical and normative reasons to question whether it has been overextended in its application to adults.
As historians of medicine and psychologists have documented, medical conceptions of the nature and function of trauma have been—and remain—contested. Critiques of the “diagnostic creep” (Moynihan Reference Moynihan2016) and politically-entangled growth industries (McNally Reference McNally2018) that inhibit a more accurate diagnostic criteria for post-traumatic stress disorder (PTSD), for instance, highlight just how uncertain the mental health profession is about what exactly constitutes trauma. Additionally, Ruth Leys (Reference Leys2000) has cautioned that trauma is likely best understood and treated with a pragmatic, individual-centric clinical approach. The nuances of trauma ought to give advocates pause before boldly categorizing any and all self-motivated attempts at the management or control of an adult’s desires as traumatic, at least in the same mode as the experience of a child coerced into such treatment. In the face of such uncertainty, allowing individuals to come to their own conclusions about what constitutes a “good intimate life” appears to require a lighter touch than near total anti-fraud prohibitions.
In sum, while there are plenty of data to show that conversion therapies are harmful when coerced, those who extend to argument to all persons in all circumstances are on shaky ground. As critics of bioessentialism have pointed out time and again, there is very little evidence that human beings possess a sexual or gender telos, one which unfolds naturally in accordance with some predetermined biological self (Lewontin Reference Lewontin1993; Jordan-Young Reference Jordan-Young2011). Not only is the empirical account thin, the political and scientific faith in such conceptions encourage these persistent examinations and position-takings about who is what and what rights and protections are attendant upon those kinds of ontological distinction.
Authority, Essence, and Trauma: Conversion Therapy since 1973
Debates over the efficacy and soundness of conversion therapeutic interventions have been ongoing at least since the advent of modern sexology and social reform in the nineteenth century. Since the mid-twentieth century, the reigning notion that homosexuality and gender transgression are pathologies was replaced by one that emphasizes sexual and gender identities as both benign and deeply rooted in one’s personhood. New conceptions were built on studies showing that attempts to “repair” a person’s sexuality tended to cause psychic and physical harm as well as those that posited a biological etiology for this intractable nature of orientation. Though pro-conversion narratives and their once legion of practitioners have been largely displaced, they live on within conservative Christian political organizations as well as on the margins of mental health care and scientific research. This section charts how this shift occurred with attention to competing interpretations of authority, essence, and trauma.
Though reorientation theories and techniques were once well-regarded in the realms of psychiatry and psychoanalysis, activists and reformers waged sustained efforts against conversion therapy throughout the 1960s and 1970s. These early alliances led to major victories such as the American Psychiatric Association’s 1973 decision to depathologize homosexuality in its Diagnostic and Statistical Manual of Mental Disorders. This compounded into subsequent triumphs in similar organizations throughout the following decades (Bayer Reference Bayer1981; Spiegel Reference Spiegel2002; Drescher Reference Drescher2008; Das Reference Das2016; Lewis Reference Lewis2016). The early success within the APA was made possible both by the longstanding relationships that gay and lesbian activists had begun to make within reformist sexological and psychological circles since the 1950s as well their piggybacking onto larger trends such as liberal reformist and behavioralist campaigns against a more conservative psychoanalytic old guard within the APA leadership.
By the 1980s, the lines were sharply drawn between two groups. On one side were those researchers allied with the nascent gay and lesbian movement (Rosario Reference Rosario2003). On the other side of this conflict sat an opposition to reform that perceived declassification as an undue politically motivated reversal of the field’s near-hundred-year tradition of pathologizing non-heterosexual behavior. Following the APA’s demedicalization and the installation of a reformist leadership, these pro-conversion psychologists, sexologists, and mental health professionals were increasingly pushed to the edges of scientific inquiry and acceptable therapeutic care.
Practitioners of conversion therapy formed an alternative network of institutions that sometimes coordinated with ex-gay religious ones, but which were ultimately committed to the view that their enterprise was a legitimate scientific one. Among the most prominent of these was the National Association for Research and Therapy of Homosexuality (NARTH), formed in 1992 by psychoanalyst Charles Socarides along with clinical psychologist Joseph Nicolosi Sr. and psychiatrist Benjamin Kaufman, all of whom were longtime champions of “reparative” therapy. After hitting its peak in the late 1990s, the ex-gay movement started a downward spiral toward irrelevance in the 2000s as leaders in both the religious and scientific branches abandoned their efforts. New organizations like Truth Wins Out (itself a reaction to Focus on the Family’s Love Won Out ex-gay campaign) formed to collect and augment the voices of the new consensus, often by trumpeting the latest research in genetics, endocrinology, and neuroscience (2019).
As the ex-gay institutional network lay in ruin, nearly every mental health or research institution working on matters of sexuality in the United States came to issue statements against conversion therapy practices. In 2009, the American Psychological Association’s Task Force on Appropriate Therapeutic Responses to Sexual Orientation released its report declaring that sexual orientation change efforts (SOCE) were intrinsically harmful and wrongfully cast homosexuality as an illness rather than a normal variant of human sexuality. Even though the report made an exception for those practitioners working with patients struggling to reconcile their sexual identities and their moral beliefs under the pretense that such work would promote identity exploration rather than work from the outset toward reorientation, the APA affirmed the notion that sexual orientation was of a mostly fixed and stable quality. As the report’s authors wrote, sexual orientation was to be conceived as “tied to physiological drives and biological systems that are beyond conscious choice and involve profound emotional feelings, such as ‘falling in love’” (30). A 2018 statement by the American Psychiatric Association reconfirmed its own stance against conversion therapy for sexual orientation from 1997 and extended it to gender identity. While lacking the influence of the two reigning mental health professional associations, the American Psychoanalytic Association too issued a statement in 2012 against efforts to change an individual’s gender identity or sexual orientation.
Though the American Psychological Association’s report only contains recommendations for clinicians, LGBTQ+ interest groups and civil rights organizations have used its statement and others like it to limit the availability and legality of a wide array of practices. Today, among the most active organizations in the fight to end conversion therapy nationwide are the National Center for Lesbian Rights (NCLR), the Human Rights Campaign (2020), and the Trevor Project, the last of which provides crisis intervention and suicide prevention to LGBTQ+ youth (2019). In their work, these groups have employed a mix of legislation, litigation, bureaucratic action, and public education campaigns to put their materials on the harms of conversion therapy into the hands of counselors, teachers, administrators, school nurses, and social workers. Armed with recent statements by the American Psychological Association declaring a “resurgence” of sexual orientation change efforts and studies on the harm, trauma, and incidence of suicide associated with such practices, anti-conversion therapy advocates cite these authorities as support for state and federal bans.
The NCLR’s “Born Perfect” (2019) campaign wears the movement’s bioessentialist influence most visibly both in its name and logo, a fingerprint in which each alternating swirl dons a different color of the rainbow. Since its founding in June 2014, the Born Perfect campaign has helped to secure legislative bans on therapy for minors in twenty states, the District of Columbia, and multiple municipalities. The campaign’s advisory committee is made up of a mix of ex-gay survivors, faith leaders, attorneys, and mental health professionals, the last group of which constitutes a majority of the committee. In its own campaigns as well as its collaborative work with both the Trevor Project and the HRC’s “Just As They Are” educational campaign, the NCLR has assembled studies, statements, and testimonies by dozens of professional associations including major therapy, counseling, psychiatric, medicine, and social work organizations highlighting the general impossibility of altering one’s sexual orientation and the harm that results in attempts to do so. One of the first citations featured on the resources section of Born Perfect’s website is to an article published in the Archives of Sexual Behavior (Beckstead Reference Beckstead2012) on conversion therapy that recites the immutability thesis as laid out by famed “gay brain” researcher Simon LeVay (Reference LeVay2011).
Competing claims about essence, authority, and trauma are at the root of the opposition to conversion therapy bans. This loose coalition of social conservatives and their allies on the fringes of science and mental health assert that sexuality and gender identity are not beyond the realm of reorientation or personal control and that there are moral and public health imperatives to regain the ground that they have lost over the decades since 1973. Though these groups take a variety of theological, philosophical, biomedical, and psychological perspectives, what they share is a belief in the potential malleability of sexuality and gender identity as well as therapeutic means of controlling aberrant desires.
Representatives of various Christian sects, particularly Protestant evangelical and Baptist ones, have issued decrees against what they perceive to be the imposition of a secular ideology of bioessentialism that is at odds with their missions. Writing for the Southern Baptist Convention’s Ethics & Liberty Commission, Joe Carter (Reference Carter2018) characterized bans as a “secular form of religious establishment” wherein the belief that LGBTQ+ identities are immutable is “a matter of orthodoxy” against which one is barred from dissenting. Though it was not taken up for procedural reasons, a resolution introduced before the 2018 meeting of the Southern Baptist Convention called on Baptist leaders to oppose conversion therapy bans on the basis that their doctrines stood in contrast to the inherent “essentialism” that undergird such political interventions (Lopez Reference Lopez2018). Since its unveiling in September 2017, over 22,000 pastors and religious leaders have signed onto the Council for Biblical Manhood and Womanhood’s Nashville Statement, a document that also trades in the assumption that sexuality has a singular purpose within a heterosexual marriage and that one’s gender identity must be made congruent with one’s biological sex as assigned at birth.
Other theological authorities and Christian conservative interest groups have argued that the notion of fixity has no bearing on debates over these bans precisely because it is behavior which individuals (or parents of individuals) seek to regulate or control rather than an orientation they seek to eradicate. The Catechism of the Roman Catholic Church (2020), for example, has no official position on conversion therapy or etiology but it does state that “Homosexual persons are called to chastity.” More recent pronouncements by the Vatican have characterized “ideologies of gender” as an affront to Catholic teaching on the divine creations of man and woman (Congregation for Catholic Education 2019). These teachings have led U.S. Catholic Church associations and their public policy offices to oppose bans on the basis that they prevent parents and children themselves from accessing professional help with “unwanted urges” and “confusion” (Massachusetts Catholic Conference 2019). Those like Peter Sprigg (Reference Sprigg2018), a Senior Fellow for Policy Studies at the Family Research Council, have similarly contended that bans are based in an “opposition to the idea of someone changing their sexual orientation—even voluntarily, and even when that only means changing external behaviors.” The Christian conservative litigation group the Alliance Defending Freedom (2018) too has argued in court that a “confusion” or dissatisfaction with one’s sexual orientation or gender identity could be best served by mental health practitioners and religious leaders.
A collection of conservative professional medical associations have also joined coalitions against bans to offer their own theories. Take for example the American College of Pediatricians (ACP 2017), an organization founded in 2002 after breaking away from the well-established American Academy of Pediatrics (AAP 2019) in protest of a measure supporting second-parent adoptions by gay and lesbian couples. Whereas the AAP represents over 67,000 professionals in the field, the ACP counts around 500 as members. By virtue of its professional-sounding name, the ACP has garnered an outsized influence, especially in the media where it has broadcast its various stances against LGBTQ+ adoption and same-sex marriage rights. Its position papers have been cited by those like the Massachusetts Catholic Conference to oppose conversion therapy bans.
In a Reference Van Mol2018 statement, co-chair of the ACP’s Committee on Adolescent Sexuality Andre Van Mol defended modern therapeutic techniques, saying that they were nothing like past coercive and invasive practices. Instead, he maintained, such practices offer compassionate, life-saving care to those children and adults experiencing torment over their desires. Van Mol cautioned that without access to such therapies some patients would be “unable to heal [their] wounds, be legislated into a false identity, and be left suicidal and without hope as a result.” By inverting the trauma narrative propounded by conversion ban supporters, the ACP has taken the position that such bans not only violate the freedom of patients to choose their own care, but they also put those struggling with their identities at risk of harm or death.
Originally founded in 1943 in opposition to an early attempt to establish a national healthcare program, the Association of American Physicians and Surgeons (AAPS) has also voiced its dissent in recent conflicts over these bans. The AAPS, which represents several thousand medical practitioners, has denounced transgender bathroom access policies as “radical social experiments” based in a “Marxist cultural agenda” and has accused ban proponents of undermining patients’ right of self-determination with regard to sexuality and gender identity (2016; 2018). Like the ACP, the AAPS also asserts that bans perpetuate trauma and harm by “requir[ing] physicians to violate their sacred Oath and withhold therapy they believe to be valuable, or cooperate with treatment they believe to be harmful or immoral.”
Lastly, new scientific and mental health ventures pursued by researchers with NARTH and related ex-gay organizations have in recent years appealed to self-proclaimed advances in psychotherapeutic care as a means of challenging legislative bans. Advocates of innocuously rebranded “behavior” or “change” therapies have done so by draping themselves in references to contemporary sexology, behavioral psychology, and neuroscientific research in attempts to bring conversion therapy back into the realm of accepted care standards.
NARTH, the preeminent ex-gay scientific institution, run by psychologist Joseph Nicolosi Sr. until his death in 2017, found itself nearly alone in a country increasingly accepting of the idea that sexual orientation was to be embraced rather than reoriented. In an apparent recognition of its tainted brand, Nicolosi and others re-established themselves in 2014 as the Alliance for Therapeutic Choice and Scientific Integrity Training Institute (ATCSI). Similar to its predecessor, the ATCSI’s stated mission is to reclaim the mantle of the truly objective psychological approach to conceptualizing and treating homosexuality for those experts who perceive sexual orientation as amenable to change. To this point, the organization’s answer to the first question in its Frequently Asked Questions is a refutation of the idea that sexuality is “essentially genetically or biologically determined.”
The ATCSI deploys theories and evidence of sexual fluidity to suggest that conversion is in fact possible. The organization explains its approach with reference to the Kinsey-inspired theory of a continuum, wherein a person can fall in between exclusively defined orientations and can even move among them. This statement counterposes an absolute categorical conception of sexuality (i.e., one that is “grounded in an essentialist view of homosexual sexual orientation that assumes same-sex attractions are the natural and immutable essence of a person”) with its own to assert that theirs is actually much closer in theory to other behavioral “challenges” that mental health practitioners generally treat. Unlike clinical approaches to issues like alcoholism, depression, and grief, the ATCSI argues, the mainstream consensus on sexuality has come to perceive any backsliding as evidence that the default orientation is impossible to alter.
The latest venture in reorientation therapy is the Reintegrative Therapy Association (RTA), an organization that has employed cutting-edge research agendas in neuroscience to make new claims for an old purpose. Founded by Nicolosi’s son and fellow clinical psychologist Joseph Nicolosi Jr., the RTA purports to promote “a specific combination of established, evidence-based treatment interventions” for those persons unhappy with their same-sex desires (2018). As new research on neuroplasticity—the notion that brain structures are to a certain degree malleable and that changes can occur as a response to environmental conditions—demonstrates, the very brain structures to which those like Simon LeVay and others have attributed the immutability of sexual orientation are in fact amenable to alteration.
Nicolosi Jr. and the RTA appear to have based their care regimen in what most in the fields they cite would perceive as misrepresentations of their work. It is one thing to suggest that certain regions in the brain are potentially involved in one’s sexual predilections or sense of gender in some nebulous way. It is another to posit that this necessarily entails that a therapist might engage in targeted practices to shape those regions according to a specific plan for how a patient wishes to experience their desire. In fact, this interpretation of neuroplasticity inserts a sort of biodeterminism back into the equation as a handful of neuroanatomical structures are assumed to code for sexual orientation in an “on/off” fashion. Even if these structures are held to be malleable, they are ultimately biological sites hypothesized to be determinative of vast arrays of sexual expression, desire, and identity. Although Nicolosi Jr. acknowledges the complexity that is distorted in simple “born this way” versus choice formulations of sexual orientation, the RTA’s theory and agenda rely upon the same dichotomies that govern the reigning bioessentialist thesis.
Contemporary Campaigns to Ban Conversion Therapy: Minors, Fraud, and Religious Liberty
In 2012, California became the first state to pass a ban on conversion therapy for minors, therein setting the stage for a series of conflicts between ban proponents and opponents for the remainder of the decade. A coalition led by Lambda Legal (Reference Legal2012), Equality California, the National Center for Lesbian Rights, Mental Health America of Northern California, and Gaylesta (the Psychotherapist Association for Gender and Sexual Diversity) were successful in persuading the state to pass the ban. State senator and author of the original senate version of the bill Ted Lieu explained that ex-gay therapists should not be permitted to “engage in a (medical) practice that the medical community itself has disavowed” (Frances Reference Frances2012). Upon signing the ban into law, then-governor Jerry Brown similarly stated that “this bill bans non-scientific ‘therapies’ that have driven young people to depression and suicide. These practices have no basis in science or medicine and they will now be relegated to the dustbin of quackery” (McGreevy Reference McGreevy2012).
For the first five years of the ban’s existence, ex-gay proponents including Christian conservative legal organizations and practitioners of conversion therapy fought the law in federal court. Throughout their challenges, this coalition advanced a number of constitutional arguments concerning the free speech rights of mental health practitioners, the right of parents to dictate care for their children, and religious liberty rights. Notably, courts in California—and in states like New Jersey where these bans have also been challenged—have become increasingly unwilling to recognize conversion therapy practitioners as legitimate scientific experts under general evidentiary standards (Southern Poverty Law Center 2015).
In the first of two federal district-level challenges to the law, Judge William B. Shubb of the Eastern District of California ruled in favor of three plaintiffs challenging the law on the grounds that there were legitimate free speech concerns about the ban’s application (Eckholm Reference Eckholm2012). Shubb questioned evidence of conversion therapy’s harms, noting that the state’s claims were “based on questionable and scientifically incomplete studies that may not have included minors.” The following day, Judge Kimberly J. Mueller also of the Eastern District of California ruled in favor of the state’s power to regulate such medical care.
These disagreements over constitutional principle and the empirics made their way to the Ninth Circuit Court of Appeals in October 2013, where Judge Susan P. Graber penned a decision upholding the ban.Footnote 6 Graber devoted the beginning of her majority opinion to a history of homosexuality’s trajectory from pathology to the current scientific consensus that same-sex attraction is a normal variant of human sexuality. Additionally, Graber noted that the California legislature had justified the law in the “well-documented, prevailing opinion of the medical and psychological community that SOCE has not been shown to be effective and that it creates a potential risk of serious harm to those have experienced it.”Footnote 7 In response to NARTH’s freedom of speech challenge, Graber argued that even though professional speech is constitutionally-protected, it is not immune to the state’s police power to ensure the public’s health, safety, and welfare. Similarly, Graber noted that while parents did retain some constitutionally-mandated rights over their children, those rights did not extend to a “fundamental right to choose a mental health professional with specific training,” especially not one offering services deemed harmful and out of the mainstream. Although both case law and statutory exemptions in the Child Abuse Prevention Treatment Act of 1996 maintain broad carve-outs for religious parents who refuse certain medical treatments for their children, the Ninth Circuit did not find that such a right extends to access to conversion therapy.
Upon denial of their appeal to the U.S. Supreme Court, ban opponents filed an additional challenge based primarily in the First Amendment’s establishment and free exercise clauses, which again was struck down by Judge Graber.Footnote 8 The Ninth Circuit found that the ban neither presented an excessive entanglement between church and state nor did it have the principal or primary effect of advancing or inhibiting religion because California had not stepped into the realm of spiritual counseling and guidance when it prevented licensed mental health professionals in both secular and religious institutions from engaging in conversion efforts (1044-5). The Ninth Circuit too struck down the free exercise challenge to the ban, noting that while the law did prevent some seeking SOCE for religious purposes, the legislative history and text of the law itself revealed its basis not in curbing religious liberty but in regulating sanctioned mental healthcare practices (1045-7).
Emboldened by the federal judiciary’s refusal to overturn California’s ban, lawmakers and dozens of advocacy groups and professional mental health organizations in 2018 pursued even stronger legislation that would have barred legal adults from accessing conversion therapy through a licensed professional (Equality California 2018). Styled as a measure against fraudulent business practices, California Senator Evan Low introduced AB 2943: “Unlawful Business Practices: Sexual Orientation Change Efforts” in February 2018.Footnote 9 The first several pages of the bill recounted over a dozen pronouncements made by various scientific, medical, and social work organizations condemning reorientation efforts.Footnote 10 Coming on the heels of anti-fraud complaints made by the NCLR and the HRC to the Federal Trade Commission in 2016 and those groups’ early fraud-based litigation efforts, AB 2943 would have made it unlawful under the state’s Consumer Legal Remedies Act to advertise or to sell SOCE-based services to adults on the basis that such treatments are deceptive in nature.Footnote 11
This attempt at an expanded ban courted controversy immediately from organized religious and socially conservative institutions claiming that such an expansion presented a direct threat to religious liberty. At the helm of this opposition was the California Family Council, a state affiliate of the Family Research Council, which assembled a coalition of local, state, and national organizations against AB 2943 (2018). Arguments against the proposed legislation ranged from those who feared that the vagueness of the law would lead to a host of negative consequences for those engaged in spiritual counseling to those who condemned the state’s regulation of such practices as presenting an inherent threat to the freedom of the individual to deal with “unwanted same-sex desires or gender confusion” (Burt Reference Burt2018; Flynn Reference Flynn2018).
In a 2018 legal memorandum, the Alliance Defending Freedom (ADF), the most well-funded Christian conservative legal organization in the country, spelled out the plan to challenge the law’s constitutionality. The ADF argued that AB 2943 impermissibly outlawed a certain kind of speech by targeting its content with censorship (1, 3-4). As a result, the sale of religious books or the ticketing of events where reorientation was discussed could potentially be regulated under the law and, thus, would extend far beyond the offices of licensed mental health practitioners (3). The ADF also argued that the ban would unconstitutionally limit an individual’s right to access “the spectrum of available knowledge” within the context of the counselor-client relationship (5). Finally, the ADF asserted that the free exercise of religion was also at peril as religious instruction concerning the sinfulness of homosexuality and gender nonconformity could too fall under the ban. Here, the ADF cited a case in which state lawmakers called upon Michigan’s attorney general to investigate whether a ministry had violated the state consumer protection act when it held SOCE workshops (3).
Though rejected by most liberal opponents of conversion therapy, some of the ADF’s claims have found favor among unlikely allies. For instance, the Los Angeles Times’ editorial board (2018) advised lawmakers to “target ‘gay conversion therapy,’ not religion,” noting that the ambiguities of the law might indeed be used to inhibit the exercise of religious freedom. The board argued that because the existing consumer fraud law prevented the sale and advertisement of books and other media deemed deceptive, religious opponents were justified in their fears that conversion-themed materials too might be censored by the law. In the most extreme case, ban opponents conjectured that a minister or religious counselor might be found criminally liable for suggesting the purchase of such media or the recommendation that a church member pay for access to a religious seminar on the theme. The editorial board also raised the concern that in addition to eradicating more traditional conversion efforts, the bill might also curb therapies offered to those who, despite feeling their sexual orientations to be deeply-rooted and immutable, are interested in how to achieve celibacy.
Throughout the legislative debate over AB 2943, Low defended the bill’s balancing of LGBTQ+ equality with religious and free speech concerns by noting that only relationships involving the exchange of money for services would fall under state regulation (Short Reference Short2018). Others in the chamber disagreed vehemently. In a testimony delivered to the assembly, self-described ex-gay pastor Jim Domen gestured to a portrait of his wife and children in asserting that in the eyes of AB 2943 supporters his family was a “fraud.” In a sentiment couched in pluralist logic, Domen explained that “there is nothing wrong with me [and] there is nothing wrong with members of the LGBT community” (Short Reference Short2018). According to this formulation, the bill struck no such balance of rights and equality; rather, it denied the autonomy and self-conception of one person’s experience with their sexuality or gender (and criminally targeted those assisting in realizing that self-conception) by favoring another’s (the organized LGBTQ+ political community and the reigning scientific consensus).
Even after winning the vote handily on the senate floor, Low ultimately shelved the measure. He did so shortly after embarking on a state-wide listening tour to hear out the religious opposition in an attempt to understand why he and other supporters had failed to mollify their anger and fear. Expressing his relief with Low’s decision, Jonathan Keller, president of the California Family Council, celebrated the tabling of a bill that he believed would have “tragically limited our ability to offer compassionate support related to sexual orientation and gender identity, and even to preach Jesus’ message of unconditional love and life transformation” (Thompson Reference Thompson2018). In a more recent statement, however, Low cautioned against the expectation that a new version of the expanded ban would contain anything akin to a religious exemption. In an allusion to religious liberty arguments that have emerged in the context of cases like Masterpiece Cakeshop, Low stated that lawmakers would “not provide a religious license to discriminate … [j]ust like there should not be a religious exemption to deny me from being served in a restaurant, we will not provide a blanket guide to discriminate” (Bajko Reference Bajko2019).
Conflicts over fraud have since expanded beyond the California context as the U.S. Senate may soon consider similar legislation. In 2015 and then again in 2019, California U.S. Senator Ted Lieu introduced the Therapeutic Fraud Prevention Act, which would grant the Federal Trade Commission the authority to prohibit conversion therapy services as consumer fraud. While leaders at the Trevor Project framed the proposal as a measure protecting youth, the language of the bill indicates a much broader scope. As drafted, the law would “prohibit, as an unfair or deceptive act or practice, commercial sexual orientation conversion therapy, and for other purposes,” ergo any consumer product or service that works against the realization of one’s presumably true sexual or gender identity (Mendoza Reference Mendoza2019). The next round of legislative and judicial conflict will likely continue to question how much legal force the state can and should use to prohibit adults from attempting to manage or reorient their behavior and desires.
Conclusion: The Ends and Limits of Bioessentialism
Scientific authority has been levied effectively against the often coercive and generally dehumanizing practice of conversion therapy. This is what it means to suggest that LGBTQ+ citizenship claims have become beholden to a biopolitical framework. Such a framework informs the logics and institutions upon which these political identities have been constructed, and what is perceived to guarantee both their longevity and their potential for expansion. Modern approaches to conversion therapy bans thus contain within them political and normative liabilities that extend largely from advocates’ reliance on strong, often biologically-backed narratives of essence as well as certain limits imposed by constitutional law. Ultimately, this is not a problem that is inherent to the participation of mental health experts in conflicts over how to protect the most defenseless from coercive and unfounded therapeutic practices. Rather, it is one that flows from the tendency of advocacy groups and their allies to advance their projects with difficult—if not impossible—to prove claims about the essence of queer identities.
There are complex reasons that one might seek conversion therapy including the threat of economic or social ruin upon exploring or embracing a non-normative gender or sexuality. However, that is as much a failing of the reigning political economic order than it is an indictment of a homophobic or transphobic society. Accordingly, it is a problem that may be better remedied through a politics of redistribution, robust social welfare policies, and a systemic shift of power away from capital rather than individually-targeted interventions into what assistance a person may or may not seek (Adler Reference Adler2018). Contrary to Foucauldian notions of biopolitics, one might actually be able to use the state in many ways to undermine and erode biopolitical tendencies at least in this one area where there is a clear relationship between social movement pressure, scientific and medical discourses, and the state on one hand and the subjectivities of those faced with anxieties and potential harm over their gender or sexual sense of self on the other.
Bioessentialist ideology is grounded in scientific and medical institutions and political pronouncements that go far beyond claims of harm and trauma and extend into the domain of essence. As such, it is one in which the most authoritative voice is that of the taxonomist. Even if a queer sense of self does not owe itself to any primordial force or have an origin in a pre-socio-political context, both the historical record and contemporary testimonies demonstrate that such desires and feelings about oneself cannot be easily eradicated by imposed repressive forces, at least without much trauma and death. Despite it being important to note all the ways in which this particular form of a liberal politics of sexuality and gender identity has generated gains in terms of civil rights and many kinds of political cultural acceptance, it is equally requisite to understand what this politics of personhood—what these narratives and logics of identity—crowds out, distorts, misrepresents, and maligns in doing so.
