American University Law Review
December, 1999
COMMENT
"Reparative" Therapy: Whether Parental Attempts to Change a Child's
Sexual Orientation Can Legally Constitute Child Abuse
Karolyn 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 child’s 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 person’s 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 state’s 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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