HB 587-FN - AS INTRODUCED

2017 SESSION

17-0200

01/10

HOUSE BILL 587-FN

AN ACT relative to conversion therapy seeking to change a person's sexual orientation.

SPONSORS: Rep. Schleien, Hills. 37; Rep. Fisher, Belk. 9; Rep. Zaricki, Hills. 6; Rep. Butler, Carr. 7; Sen. Innis, Dist 24

COMMITTEE: Health, Human Services and Elderly Affairs

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ANALYSIS

This bill prohibits persons licensed to provide counseling services to propose to engage or engage in conversion therapy with a person under 18 years of age.

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Explanation: Matter added to current law appears in bold italics.

Matter removed from current law appears [in brackets and struckthrough.]

Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

17-0200

01/10

STATE OF NEW HAMPSHIRE

In the Year of Our Lord Two Thousand Seventeen

AN ACT relative to conversion therapy seeking to change a person's sexual orientation.

Be it Enacted by the Senate and House of Representatives in General Court convened:

1  Findings and Purpose.  The general court hereby finds:

I.  Contemporary science recognizes that being lesbian, gay, bisexual, or transgender is part of the natural spectrum of human identity and is not a disease, disorder, or illness.

II.  The American Psychological Association convened a Task Force on Appropriate Therapeutic Responses to Sexual Orientation.  The task force conducted a systematic review of peer-reviewed journal literature on sexual orientation change efforts, and issued a report in 2009.  The task force concluded that sexual orientation change efforts can pose critical health risks to lesbian, gay, and bisexual people, including confusion, depression, guilt, helplessness, hopelessness, shame, social withdrawal, suicidality, substance abuse, stress, disappointment, self-blame, decreased self-esteem and authenticity to others, increased self-hatred, hostility and blame toward parents, feelings of anger and betrayal, loss of friends and potential romantic partners, problems in sexual and emotional intimacy, sexual dysfunction, high-risk sexual behaviors, a feeling of being dehumanized and untrue to self, a loss of faith, and a sense of having wasted time and resources.

III.  The American Psychological Association issued a resolution on Appropriate Affirmative Responses to Sexual Orientation Distress and Change Efforts in 2009, which states:  "The American Psychological Association advises parents, guardians, young people, and their families to avoid sexual orientation change efforts that portray homosexuality as a mental illness or developmental disorder and to seek psychotherapy, social support, and educational services that provide accurate information on sexual orientation and sexuality, increase family and school support, and reduce rejection of sexual minority youth."

IV.  The American Psychiatric Association published a position statement in March of 2000 in which it stated:

(a)  "Psychotherapeutic modalities to convert or 'repair' homosexuality are based on developmental theories whose scientific validity is questionable.  Furthermore, anecdotal reports of 'cures' are counterbalanced by anecdotal claims of psychological harm.  In the last 4 decades, 'reparative' therapists have not produced any rigorous scientific research to substantiate their claims of cure.  Until there is such research available, the American Psychiatric Association recommends that ethical practitioners refrain from attempts to change individuals' sexual orientation, keeping in mind the medical dictum to first, do no harm;"

(b)  "The potential risks of reparative therapy are great, including depression, anxiety and self-destructive behavior, since therapist alignment with societal prejudices against homosexuality may reinforce self-hatred already experienced by the patient.  Many patients who have undergone reparative therapy relate that they were inaccurately told that homosexuals are lonely, unhappy individuals who never achieve acceptance or satisfaction.  The possibility that the person might achieve happiness and satisfying interpersonal relationships as a gay man or lesbian is not presented, nor are alternative approaches to dealing with the effects of societal stigmatization discussed;" and

(c)  "Therefore, the American Psychiatric Association opposes any psychiatric treatment such as reparative or conversion therapy which is based upon the assumption that homosexuality per se is a mental disorder or based upon the a priori assumption that a patient should change his or her sexual homosexual orientation."

V.  The American Academy of Pediatrics in 1993 published an article in its journal, Pediatrics, stating:  "Therapy directed at specifically changing sexual orientation is contraindicated, since it can provoke guilt and anxiety while having little or no potential for achieving changes in orientation."

VI.  The American Medical Association Council on Scientific Affairs prepared a report in 1994 in which it stated:  "Aversion therapy (a behavioral or medical intervention which pairs unwanted behavior, in this case, homosexual behavior, with unpleasant sensations or aversive consequences) is no longer recommended for gay men and lesbians.  Through psychotherapy, gay men and lesbians can become comfortable with their sexual orientation and understand the societal response to it."

VII.  The National Association of Social Workers prepared a 1997 policy statement in which it stated:  "Social stigmatization of lesbian, gay, and bisexual people is widespread and is a primary motivating factor in leading some people to seek sexual orientation changes.  Sexual orientation conversion therapies assume that homosexual orientation is both pathological and freely chosen.  No data demonstrates that reparative or conversion therapies are effective, and, in fact, they may be harmful."

VIII.  The American Counseling Association Governing Council issued a position statement in April of 1999, and in it the council states:  "We oppose 'the promotion of "reparative therapy" as a "cure" for individuals who are homosexual."

IX.  The American School Counselor Association issued a position statement in 2014 which states that:  "It is not the role of the professional school counselor to attempt to change a student's sexual orientation or gender identity.  Professional school counselors do not support efforts by licensed mental health professionals to change a student's sexual orientation or gender as these practices have been proven ineffective and harmful."

X.  The American Psychoanalytic Association issued a position statement in June 2012 on attempts to change sexual orientation, gender identity, or gender expression, and in it the association states:  "As with any societal prejudice, bias against individuals based on actual or perceived sexual orientation, gender identity or gender expression negatively affects mental health, contributing to an enduring sense of stigma and pervasive self-criticism through the internalization of such prejudice;" and "psychoanalytic technique does not encompass purposeful attempts to 'convert' 'repair,' change or shift an individual's sexual orientation, gender identity or gender expression.  Such directed efforts are against fundamental principles of psychoanalytic treatment and often result in substantial psychological pain by reinforcing damaging internalized attitudes."

XI.  The American Academy of Child and Adolescent Psychiatry in 2012 published an article in its journal, Journal of the American Academy of Child and Adolescent Psychiatry, stating:  "Clinicians should be aware that there is no evidence that sexual orientation can be altered through therapy, and that attempts to do so may be harmful.  There is no empirical evidence adult homosexuality can be prevented if gender nonconforming children are influenced to be more gender conforming.  Indeed, there is no medically valid basis for attempting to prevent homosexuality, which is not an illness.  On the contrary, such efforts may encourage family rejection and undermine self-esteem, connectedness and caring, important protective factors against suicidal ideation and attempts.  Given that there is no evidence that efforts to alter sexual orientation are effective, beneficial or necessary, and the possibility that they carry the risk of significant harm, such interventions are contraindicated."

XII.  The Pan American Health Organization, a regional office of the World Health Organization, issued a statement in 2012 stating:  "These supposed conversion therapies constitute a violation of the ethical principles of health care and violate human rights that are protected by international and regional agreements." The organization also noted that reparative therapies "lack medical justification and represent a serious threat to the health and well-being of affected people."

XIII.  The American Association of Sexuality Educators, Counselors, and Therapists issued a statement in 2014 stating:  "Same sex orientation is not a mental disorder and we oppose any 'reparative' or conversion therapy that seeks to 'change' or 'fix' a person's sexual orientation.  AASECT does not believe that sexual orientation is something that needs to be 'fixed' or 'changed.'  The rationale behind this position is the following:  Reparative therapy, (for minors, in particular) is often forced or nonconsensual.  Reparative therapy has been proven harmful to minors.  There is no scientific evidence supporting the success of these interventions.  Reparative therapy is grounded in the idea that non-heterosexual orientation is 'disordered.' Reparative therapy has been shown to be a negative predictor of psychotherapeutic benefit."

XIV.  The American College of Physicians wrote a position paper in 2015 stating:  "The College opposes the use of 'conversion, "reorientation,' or 'reparative' therapy for the treatment of LGBT persons.... Available research does not support the use of reparative therapy as an effective method in the treatment of LGBT persons.  Evidence shows that the practice may actually cause emotional or physical harm to LGBT individuals, particularly adolescents or young persons."

XV.  Minors who experience family rejection based on their sexual orientation face especially serious health risks.  In one study, lesbian, gay, and bisexual young adults who reported higher levels of family rejection during adolescence were 8.4 times more likely to report having attempted suicide, 5.9 times more likely to report high levels of depression, 3.4 times more likely to use illegal drugs, and 3.4 times more likely to report having engaged in unprotected sexual intercourse compared with peers from families that reported no or low levels of family rejection.  This is documented by Caitlin Ryan et al. in their article entitled Family Rejection as a Predictor of Negative Health Outcomes in White and Latino Lesbian, Gay, and Bisexual Young Adults (2009) 123 Pediatrics 346.

XVI.  New Hampshire has a compelling interest in protecting the physical and psychological well-being of minors, including lesbian, gay, bisexual, and transgender youth, and in protecting its minors against exposure to serious harms caused by sexual orientation change efforts.

2  New Chapter; Prohibiting Conversion Therapy on Minors.  Amend RSA by inserting after chapter 332-K the following new chapter:

CHAPTER 332-L

PROHIBITING CONVERSION THERAPY ON MINORS

332-L:1  Definition.  In this chapter:

I.  "Conversion therapy" means any practices or treatments that seek to change an individual's sexual orientation or gender identity, including efforts to change behaviors or gender expressions or to eliminate or reduce sexual or romantic attractions or feelings toward individuals of the same gender.  Conversion therapy shall not include counseling that provides assistance to a person undergoing gender transition, or counseling that provides acceptance, support, and understanding of a person or facilitates a person's coping, social support, and identity exploration and development, including sexual-orientation-neutral interventions to prevent or address unlawful conduct or unsafe sexual practices, as long as such counseling does not seek to change an individual's sexual orientation or gender identity.

II.  “Department” means the department of health and human services.

332-L:2  Prohibition; Violations, and Enforcement.

I.  A person who is licensed to provide professional counseling under RSA 326-B, RSA 328-D, RSA 329, RSA 329-B, RSA 330-A:16, RSA 330-A:18, RSA 330-A:19, RSA-A:20, RSA 330-A:21, or RSA 330-C, including, but not limited to, a nurse, physician assistant, physician, psychologist, clinical social worker, clinical mental health counselor, marriage and family therapist, or licensed alcohol and drug counselor, or a person who performs counseling as part of the person's professional training for any of these professions, shall not engage in conversion therapy with a person under 18 years of age.

II.  Any conversion therapy practiced by a licensed professional, as listed in paragraph I, on a patient under 18 years of age shall be considered unprofessional conduct and shall subject such person to discipline by the relevant licensing authority.

III.  The department shall have concurrent authority to initiate proceedings for violations of this section.  The department shall adopt rules, pursuant to RSA 541-A, relative to the proper administration of this chapter.

332-L:3  Unfair or Deceptive Acts and Practices Related to Conversion Therapy.

I.  It shall be unlawful for any person to:

(a)  Provide conversion therapy to any individual if such person receives monetary compensation in exchange for such services; or

(b)  Advertise for the provision of conversion therapy where such advertising claims:

(1)  Propose to change another individual's sexual orientation or gender identity;

(2)  Propose to eliminate or reduce sexual or romantic attractions or feelings toward individuals of the same gender; or

(3)  State that such efforts are harmless or without risk to individuals receiving such therapy.

II.  A violation of this section shall be considered an unfair or deceptive act or practice, as defined in RSA 358-A:2, and shall be subject to the same enforcement, liabilities, and penalties as set forth in RSA 358-A.

332-L:4  Prohibition on State Funding for Conversion Therapy.  No state funds, nor any funds belonging to a municipality, agency, or political subdivision of this state, shall be expended for the purpose of conducting conversion therapy, referring a person for conversion therapy, health benefits coverage for conversation therapy, or a grant or contract with any entity that conducts conversion therapy or refers individuals for conversion therapy.

3  New Paragraph; Consumer Protection; Acts Unlawful.  Amend RSA 358-A:2 by inserting after paragraph XVII the following new paragraph:

XVIII.  Conducting or advertising for the provision of conversion therapy, as defined in RSA 332-L:1, I.

4  Effective Date.  This act shall take effect January 1, 2018.

LBAO

17-0200

1/19/17

HB 587-FN- FISCAL NOTE

AS INTRODUCED

AN ACT relative to conversion therapy seeking to change a person's sexual orientation.

FISCAL IMPACT:      [ X ] State              [ X ] County               [    ] Local              [    ] None

METHODOLOGY:

This bill prohibits persons licensed to provide counseling services from engaging in conversion therapy with a person under 18 years of age.  The bill also limits advertising for the provision of conversion therapy and any violation would be considered unprofessional conduct and an unfair or deceptive act.  It would also prohibit the use of state or local funds for conducting conversion therapy, referring a person for conversion therapy, health benefits coverage for conversion therapy, or a grant or contract with any entity that conducts conversion therapy or refers individuals for conversion therapy.  This bill contains penalties that may have an impact on the New Hampshire judicial system.  There is no method to determine how many charges would be brought as a result of the changes contained in this bill to determine the fiscal impact on expenditures.  However, the entities impacted have provided the potential costs associated with these penalties below.

The Office of Professional Licensure and Certification states the potential complaints or hearings that could possibly result from this legislation are uncertain, and revenues and expenditures are indeterminable.  

The Department of Health and Human Services indicates that licensed practitioners would be subject to discipline by their licensing authority for any violation.  The Department would have concurrent jurisdiction to initiate proceedings for any violations.  The Department would be required to adopt rules relative to this matter.  There would be an indeterminable cost to the Department for the drafting of rules and bringing proceedings if needed.

The Judicial Branch states that all of the licensing statutes listed provide for appeals of disciplinary actions under the respective statutes to the New Hampshire Supreme Court pursuant to RSA 541.  In addition, the provision of conversion therapy for monetary compensation or to advertise in a manner contrary to the limitations specified would be unlawful and an unfair or deceptive act or practice in violation of the Consumer Protection Act, RSA 358-A.  The potential fiscal impact to the Judicial Branch is the potential of additional administrative appeals to the New Hampshire Supreme Court and potential cases arising under the Consumer Protection Act.  The Supreme Court has discretionary review of appeals and such appeals are speculative to estimate a fiscal impact.  Potential unfair or deceptive acts under the Consumer Protection Act involve claims that are often hard-fought and carry with them enforcement actions by the attorney general, criminal prosecution and private actions with the potential for up to treble damages.  There is no information on which to estimate the potential volume of cases that could arise as a result of this bill.

The Judicial Council assumes that all violations of this statute by a person would take place within the context of that person’s role as a professional therapist and it would therefore be unlikely that he or she would meet the eligibility standards for the appointment of counsel established by RSA 604:A-2-c.  The Council also states that unfair or deceptive practices under the Consumer Protection Act are pursued by the Department of Justice and classified as undesignated misdemeanors.  The Council assumes that most offenses would be classified as Class B misdemeanors, and would not trigger the right to the assistance of counsel at the State’s expense. Although the proposed legislation regulates more conduct, and could conceivably lead to future prosecutions, the legislation regulates commercial activities; therefore, the Judicial Council assumes it would not experience an increase in expenditures.  Historically, the indigent-defense-delivery system has not provided representation to defendants charged with crimes who have allegedly violated some aspect of a law regulating commercial activities.  Anyone charged with a crime in the context of a business or occupation would likely be defended or indemnified by their insurer or by their employer, and accordingly, would obtain private counsel.  Based on these assumptions, the Judicial Council estimates there will be no fiscal impact on their operations as a result of the bill.

The New Hampshire Association of Counties states under proposed RSA 332-L:3, II, a  violation considered to be an unfair or deceptive act or practice under the Consumer Protection Act could result in additional prosecution and incarceration costs.  County prosecution costs vary statewide and county incarceration costs range from $85 to $110 per day.

The Department of Justice estimates it could handle any violations of the proposed law using existing resources.

AGENCIES CONTACTED:

Judicial Branch, Departments of Justice and Health and Human Services, Judicial Council, New Hampshire Association of Counties, and Office of Professional Licensure and Certification