By Brock Meyer.
Arizona, few may know, has a legacy within the LGBTQ+ civil rights movement: it’s the birthplace of the tricolor trans rights flag, designed by longtime Phoenix resident and trans woman, Monica Helms. Regardless of the flag’s fame, Arizona’s LGBTQ+ protections are limited, especially within the realm of conversion therapy.
Conversion therapy, which seeks to convert LGBTQ+ individuals to straight and cisgender identities, involves draconian medical practices categorically rejected by the professional medical community. State legislatures throughout the U.S. have enacted conversion therapy bans to protect youth from these harmful practices. Interest groups have met this expansion with constitutional challenges decrying government overreach impinging citizens’ freedom of speech. On June 27th, 2023, Arizona Governor Katie Hobbs passed Executive Order 2023-13, “Protecting Young People from Conversion Therapy.” As Arizona develops its conversion therapy protections with Governor Hobbs’s recent executive order, will it survive an inevitable constitutional attack?
The American Tradition of Conversion Therapy
Ever since a boy loved a boy and a girl loved a girl, a corresponding imperative existed to convert John and Jane into proper, God-fearing, heterosexual Americans. These attempts at conversion therapy vary from Freud’s hypnotic cures and faith-based “pray away the gay” camps to even harsher practices, including castration and lobotomies aimed at removing “impure” sexual urges. Practitioners often used language expressing a desire to cleanse the world of the immoral abomination of homosexuality. Conversion therapy practices considered to be effective in the past included aversion therapy, where practitioners would present same-sex erotic images while using electroshock, ice baths, and burning with metal coils to manifest an aversion to the images in the subject. In addition to sexual orientation change efforts, conversion therapy expanded as a treatment to gender dysphoria in trans people, attempting to force people to accept the sex they were assigned at birth.
During the era of the Stonewall Riots and the LGBTQ+ civil rights movement in the late 1960s, the religious zeal surrounding conversion therapy began to shift, particularly within the medical community. Over the course of the following fifty years, countless professional organizations would change their positions on conversion therapy as a treatment, especially when practiced on minors.
This reversal was prompted by overwhelming evidence of severe harm to patients of conversion therapy, who are often referred to as survivors. Conversion therapy was considered so harmful that experts and international agencies often likened it to torture. Conversion therapy’s strategies of deteriorating a person’s resistances, self-worth, and familial attachments were closely tied to survivor’s long-term health: one study found that trans survivors were 1.5 times more likely to attempt suicide in the prior year and 2.2 times more likely to attempt suicide in their lifetime in comparison to their peers who did not undergo conversion therapy. The numbers worsen when conversion therapy is applied to children: survivors who experienced conversion therapy before the age of ten were 2.4 and 4.1 times more likely to attempt suicide in the prior year and in their lifetime, respectively.
While some Americans may view conversion therapy as a relic of our past, it remains a vestige in the present. Only twenty-two states in the U.S. have state law bans on conversion therapy for minors, and an additional five states possess partial bans. One such partial ban has been implemented in Arizona’s Pima County, who passed an ordinance in 2017 banning the practice for minors. Pima was the sole county in Arizona to do so, with no broader restriction existing in the state until last year.
Executive Order 2023-13 and Constitutional Challenges Abound
On June 27th, 2023, Arizona Governor Katie Hobbs signed two executive orders, EO 2023-12 and 2023-13, ensuring medically necessary gender-affirming surgery would be covered under state employee health plans and barring state agencies from funding, promoting, or supporting conversion therapy treatment for minors. Notably, this restriction does not ban the practice—it only blocks it from receiving state funding. These two orders marked the governor’s twelfth and thirteenth executive orders since the start of her gubernatorial journey just six months prior. The two orders have since been met with stark opposition from her political opponents, who argue that the orders usurp the Arizona Legislature’s lawmaking powers, guaranteed to it under the separation of powers doctrine. This argument from Arizona GOP leadership reflects a war brewing on a larger stage: how should courts balance the government’s interest in protecting its citizens through bans with a citizen’s constitutional right to protection from government overreach?
A Banned Practice and a Circuit Split
The most recent battle on this topic occurred in Washington State in September of 2022. In Tingley v. Ferguson, the Ninth Circuit upheld a statute banning the practice of conversion therapy for minors entirely. In the case, plaintiff Brian Tingley, a licensed marriage and family counselor, alleged the ban unconstitutionally infringed his rights to freedom of speech and religion under the First Amendment. Tingley’s Christian faith informed his practice of talk therapy with queer youth, including the belief that the sex each person is assigned at birth is “a gift from God.” The court held that the state’s interest in protecting the physical and psychological well-being of its minors was sufficiently legitimate to survive the constitutional challenge.
Similar challenges have arisen across the United States, with some circuits subjecting bans to conversion therapy for minors to a stricter standard—and in some cases, overturning them entirely. Meanwhile, some cases were prevented from even raising First Amendment challenges, with courts concluding that the bans were not restricting speech but regulating professional conduct, despite the United States Supreme Court criticizing that conclusion in a later opinion.
Given the evident need for clarity on the proper standard to evaluate constitutional challenges to conversion therapy bans, the Supreme Court surprised legal observers in December of 2023 when it declined to review Tingley v. Ferguson on appeal from the Ninth Circuit. In a dissent penned by Justice Thomas, the controversial conservative icon lambasted the Ninth Circuit, arguing that “Washington silenced one side of this debate . . . licensed counselors cannot voice anything other than the state-approved opinion on minors with gender dysphoria without facing punishment.” With only Justices Thomas, Alito, and Kavanaugh voting to review, the dispute remains unresolved.
The Future of Conversion Therapy Practices in Arizona
Despite the backlash that Governor Hobbs received over Executive Order 2023-13, it has thus far survived. The reality is that executive orders that only partially restrict conversion therapy are not as vulnerable to constitutional attack as full bans created through legislation. As the governor, Hobbs is granted an implicit executive power by the Arizona Constitution, which she can employ to issue executive orders that execute laws, implement statutory frameworks, and run agencies. This authority extends to discretion on how to use state resources to advance policy priorities. However, opponents of the executive order may launch successful challenges if they can demonstrate that the order does not align with a state statute or the state constitution—such as the right to freedom of speech granted in Article 2, Section 6 of the Arizona Constitution.
As demonstrated by the current circuit split, a freedom of speech challenge will apply the Ninth Circuit’s forgiving rational basis standard or, in a worse case for challengers, defeat the claim entirely by defining the EO as a regulation of professional conduct. When reviewing EO 2023-13, a court will likely find, as they did in Washington, that Arizona’s interest in protecting minors is sufficient to survive a constitutional challenge. After all, EO 2023-13 only restricts state agencies from using resources to promote, support, or enable conversion therapy. In comparison, Washington’s statute bans the actual practice of conversion therapy throughout the state. Conversion therapy remains alive and well in Arizona—it just cannot be funded by state coffers.
So, EO 2023-13 will likely live on. Whether or not the Arizona Legislature decides to follow Governor Hobbs’s lead with a full legislative ban, however, is yet to be seen.
Brock Meyer is a 2L Staff Writer for the Arizona State Law Journal. Prior to law school, Brock earned his BA in Psychology at Boston University and worked as a mortgage underwriter in Orange County, CA. Brock aims to work within the M&A and Capital Markets industry after graduation, and eventually within the entertainment industry.