American University Law Review
December, 1999
COMMENT
"Reparative" Therapy: Whether Parental Attempts to Change a Child's Sexual Orientation Can Legally Constitute Child AbuseKarolyn Ann Hicks*
INTRODUCTION
The debate over whether gay, lesbian, bisexual, and transgender people are born into their sexual orientation or nurtured into it has continued for almost a century. The debate originally was confined to the medical community, but recently has shifted to the political sphere. Gay rights activists argue that sexual orientation is either an immutable characteristic or an exercise in free will, and that there need not be a consensus because all gay, lesbian, bisexual, and transgender citizens deserve equal rights in either instance. Others, largely opponents to gay rights, argue that sexual orientation is immoral and chosen, not biological; therefore, gay, lesbian, and bisexual people do not deserve the same legal protections that other legitimate minority groups enjoy.
Recently this debate has taken on a new characteristic with the emergence of the ex-gay movement and reparative therapy. This new ex-gay movement advocates that gay, lesbian, and bisexual people can, and should, change their sexual orientation to that of heterosexuality through prayer, sound Christian psychological teachings, repentance, faith in Jesus Christ as Savior and Lord, and therapy. The ex-gay movement has its roots in and financial support from right-wing, Christian organizations. Although some activists argue that this movement presents nothing more than the latest in right-wing politics, neither the history nor the individuals affected by the ex-gay movement should be ignored.
For purposes of this Comment, the form of reparative therapy under examination is that type imposed by parents on their minor children in an attempt to change the childs perceived sexual orientation. To avoid any legal ambiguity that may be presented when adults consent to undergo this therapy, this Comment focuses on children, specifically those subjected to reparative therapy against their will.
To ascertain whether a persons sexual orientation is even capable of being changed or repaired, this Comment begins with a brief exploration of whether gay, lesbian, bisexual, or transgender orientation comes from nature or nurture. Part I of this Comment looks at a sampling of the biological evidence that has been introduced over time, specifically within the past two decades, that links sexual orientation to biology. Part I then focuses on what opponents to these particular studies have argued to refute claims of biological connections. Although a claim that reparative therapy is a form of child abuse or neglect is strongest if sexual orientation is somehow biologically determined, this Part concludes that even if no ample evidence supports such a claim, reparative therapy on children should still be considered abuse and neglect because of its damaging effects.
Part II defines the practices of reparative therapy and discusses both the methodology and results it entails, focusing on gay, lesbian, bisexual, and transgender youths. Part III analyzes case law and child abuse and neglect statutes, focusing specifically on the State of New York. This Part explores the New York state courts movement toward recognizing psychological harm as a form of child abuse that is as damaging as physical abuse and neglect. Part IV compares the methodology used in reparative therapy to child abuse and neglect cases in New York and concludes that reparative therapy on children constitutes child abuse. Part IV then argues that reparative therapy can, and should, be legislatively and judicially recognized as a form of child abuse and neglect. Part IV also anticipates that parents who seek to place their children in reparative therapy will raise two defenses to a charge of abuse: a First Amendment free exercise of religion claim and a Fourteenth Amendment liberty interest claim of parental autonomy in raising their children. This Part then weighs the states interest in raising psychologically sound and productive citizens, regardless of their sexual orientation, with parents rights to raise their children as they see fit.
This Comment concludes that although reparative therapy could be legislatively interpreted and judicially determined to constitute child abuse, the likelihood of such an act to protect gay, lesbian, bisexual and transgender children is unlikely. Finally, this Comment recommends that the judiciary interpret the child abuse statutes and case law to apply to reparative therapy to protect gay, lesbian, bisexual, and transgender youths from its damaging effects. This Comment also suggests a means through which the gay liberation movement can facilitate this legal extension.
* Note & Comment Editor, American University Law Review, Volume 49; J.D. Candidate, May 2000, American University, Washington College of Law; B.A., 1997, Pennsylvania State University. I wish to thank Peter Cicchino, Nancy Polikoff, Shannon Minter, Kerry Lobel, Urvashi Vaid, Susan Carle, my family, and my partner, Kelline Carroll, for suggestions, inspiration, and moral support.
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