California's New Sexual Orientation Bill Is Bad, but It Wouldn't Ban Books

 
 

Social conservatives are right to oppose proposed legislation that would ban therapy to help those experiencing unwanted same-sex attraction or gender identity confusion. But they’re wrong to say that the bill would ban books.

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Social conservatives last week elevated a skirmish in the culture war with misdirected heavy-artillery fire. It was an understandable error by people of good will, who have well-grounded concerns about the current condition of the common good. But it was an error all the same.

The cause of the conflict was a California bill that would expose counselors and other professionals who try to help people experiencing unwanted same-sex attraction or gender confusion to serious legal penalties, such as enhanced damages awards. The bill is cruising through the California legislature without meaningful opposition. It appears to be one more instance among a growing number of attacks on ordered liberty in the name of sexual-identity privileges.

Naturally, people of conscience are growing concerned that the ambitions of sexual-identity activists are totalizing, and that their political triumphs will leave no place in which to faithfully live out the convictions that human beings are male and female and that men and women are complementary. This bill heightens those concerns, with good reason. But critics of the bill unloaded a volley of fire that both missed the mark and besmirched their own credibility.

Conservative Criticism of the Bill

Friends of ordered liberty pointed out a troubling implication of the California bill: It could burden speech on matters of civic importance and personal well-being. The legal organization Alliance Defending Freedom argued, “It targets a specific message—that an adult who is experiencing unwanted same-sex attraction or gender identity confusion can find help to address those issues—for censorship.” Laws that prohibit speech on the basis of its content are the most constitutionally suspect and often the least defensible.

The bill’s attack on freedom of expression is problematic for obvious reasons. But some conservative critics of the bill went further, asserting that it would ban books that express traditional views about human identity and sexuality, such as the Bible and scholarly works about marriage and gender dysphoria. A conservative columnist intoned that now, “in the beating heart of progressive American, not even books are safe.”

Book banning is not a favored activity of those who prefer the rule of law to tyranny and ordered liberty to fundamentalism. Tyranny and fundamentalism are bad for the mind, and they are bad for business. A bookstore in China or Saudi Arabia is impoverished both intellectually and economically insofar as the government threatens coercive force against the proprietors for offering books that communicate forbidden truths and opinions.

We Americans are not immune from the temptation to use coercion to inflict bouts of deliberate ignorance and impoverishment on our fellow citizens. After all, our Congress passed the Sedition Acts of 1798 and 1918 forbidding criticism of government. And some American communities have, on occasion, demonstrated an enthusiasm for censorship. But in the long view of American history those episodes appear as aberrations, exceptions proving the rule that freedom to propose and inquire is sacrosanct.

Indeed, a charge that someone is trying to ban books has particular purchase in American political discourse, as few allegations of wrongdoing still do. Those who still hope for a rational conversation about matters of sexual identity find it increasingly difficult to locate ground on which to reason together. And it is generally advisable to appeal to those moral and political principles on which Americans still broadly agree. We generally agree that book banning is bad. So, it is tempting to approach discourse about the California bill and others like it by reference to the most egregious acts of censorship for which they might be used. That is a mistake.

What the Proposed California Law Would Really Do

To step back from the controversy over sexual identity and to view AB-2943 as a proposed change in the law, rather than a skirmish in the culture wars, is to see that it would depart quite dramatically from the American legal tradition. It would attack both freedom of expression and the autonomy of the patient-counselor relationship quite directly. But it would not ban books.

Those concerned about book banning point out that California’s unlawful business practices statute defines “goods” broadly to include all personal property, or “chattels” in the older language of the law. Books are chattels. But the proposed legislative changes do not apply to chattels and other goods. The statute uses the term “goods” in defining existing unlawful trade practices that have nothing to do with sexual orientation, gender identity, or counseling. California’s law already prohibits trade practices concerning the sale of goods that are typically prohibited by state and federal law, such as passing off one’s products as the products of another and misrepresenting the origin of goods. The new bill does not alter or add to those provisions.

The new, proposed provision prohibits “advertising, offering to engage in, or engaging in sexual orientation change efforts with an individual.” It makes no mention of goods. The bill defines “sexual orientation change efforts” as “any practices that seek to change an individual’s sexual orientation. This includes efforts to change behaviors or gender expressions, or to eliminate or reduce sexual or romantic attractions or feelings toward individuals of the same sex.” It probably could be read to prohibit someone from selling or giving certain books while engaged in the practice of helping a person with same-sex attraction or gender dysphoria to change his or her behavior. But that is a small class of cases. It would not amount to anything like a ban on books.

Stronger Reasons to Criticize the Bill

There are other, stronger reasons to criticize the California bill. For example, it would subvert the autonomy of consensual patient-counselor relationships. We need not speculate that the bill will have that effect. It is designed to prevent counselors and mental-health professionals from providing some services to their patients.

Significantly, unlike legislation in other states that purports to limit therapy bans to minors, the California bill contains no age limit. Thus, it seems both to infringe parental authority and to curtail the autonomy of adults to decide how they want to live. Nothing about this bill is pro-choice or pro-personhood.

Such blunt interference could be justified only if efforts to help people with unwanted same-sex attraction or gender dysphoria were inherently wrong or always more harmful than beneficial. To examine the evidence is to see that those are contestable assumptions at best. Whatever one’s views about same-sex attraction and transgender identity, it should not be illegal to help someone who wants to lead a chaste life or to feel more comfortable in his or her body.

Social conservatives have reason to be frustrated and concerned about the California bill and other manifestations of the sexual-identity culture. Political and cultural elites do not seem at all interested in rational discourse about what it means to be male and female, or why liberty is important, or what legal conditions make ordered liberty possible.

Those questions matter. Conservatives should be careful not to obscure them with claims that dissolve under rigorous scrutiny.

Adam MacLeod is a professor of law at Faulkner University’s Thomas Goode Jones School of Law, author of Property and Practical Reasonand co-editor with Robert McFarland of Foundations of Law.

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