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SALT LAKE CITY — Utah lawmakers are considering scrapping an occupational rule banning conversion therapy more than two years after it took effect by executive order of then-Gov. Gary Herbert, prompting outcry from the LGBTQ community.
"Would we do better either starting over or not having this addressed by rule or by statute?" asked Sen. Curt Bramble, R-Provo, during an Administrative Rules Review and General Oversight Committee, questioning whether the issue should be determined by therapists themselves.
Utah became the 19th state in the country to ban the practice as the rule took effect in January of 2020. The yearlong effort to end the practice for minors hit snags until a rule proposed by Herbert gained the support of LGBTQ groups and The Church of Jesus Christ of Latter-day Saints and was put in place by the Utah Division of Occupational and Professional Licensing.
Lawmakers and experts on Thursday debated whether the statute is constitutional, and whether it is clear enough for therapists. The debate centered around whether conversion therapy should be considered a form of professional "speech," which is protected under the First Amendment of the Constitution, or whether it is considered "conduct," which states can regulate.
"We are disappointed to see the Legislature even considering reviving this harmful practice. It was deeply alarming to hear Sen. Bramble propose nullifying the ban in its entirety," Troy Williams, executive director of Equality Utah, said in a statement after the meeting.
"Every major medical and mental health organization agrees that conversion therapy is a deeply harmful, scientifically discredited practice. We vehemently oppose any efforts to resuscitate this dangerous and ineffective treatment for Utah youth."
Gov. Spencer Cox said during his monthly news conference on Thursday that he and his team are "obviously watching it very closely."
"We've been supportive and continue to be supportive of that rule. There has been some litigation over the past couple years since that happened in other jurisdictions, not here, and we're watching that litigation closely to see how that turns out," Cox said.
He added that conversion therapy has been "very damaging" as shown by research.
Mark Steinagel, director of the Division of Occupational and Professional Licensing, said during the meeting the department's review, so far, shows legal questions on the issue are "unsettled." He said his division needs clarity on the legal issue.
Marina Lowe, policy director for Equality Utah, said the group believes the Utah rule is supported by "both the science and the law." She called conversion therapy a "life-threatening" practice. The talk therapy part of conversion therapy remains in use today, she said, while electroshock therapy and other practices no longer take place.
She noted that courts across the country have come to different conclusions regarding whether conversion therapy is speech or conduct but asked lawmakers not to change the rule due to an "outlier" case. Under the Constitution, therapists could technically suggest a patient receives conversion therapy — that would qualify as "speech" — but they could not provide that therapy, she said.
Geoffrey Heath, with the Family Development Action Coalition, contended the rules "are not neutral" with respect to religion and, therefore, under U.S. Supreme Court precedence they infringe on clients' rights, "and that's true regardless of whether DOPL intended that result or not."
He said the rules don't outline which speech is permitted and which is forbidden. The rules leave "people of common intelligence ... guessing at their meaning."
Jeffrey Bennion, who described himself as a clinician, said the rule is "overbroad and not broad enough." He said if a client comes to him asking for help with pornography or another issue, the way he reads the statute, "it doesn't allow me to do that."
He said the rule also doesn't address other types of damage inflicted when therapists "impose their narrow view" by telling clients they need to leave their religion or other related advice.
"We've scared therapists, and I think the net result here is sexual and gender minorities are not getting care," Bennion said, adding that other clinicians have told him they're "scared to touch this now."
Sen. Jake Anderegg, R-Lehi, noted Herbert used preauthorization the Legislature had granted to "get out ahead of the Legislature and draft policy" using experts and a public forum. He said the "main reason" he has an issue with the rule is that step Herbert took.
"Was it appropriate? I would say no, because he was very aware based upon conversation with both myself and others had him ... he was well aware this was something the Legislature had intended to look at," he said.
Anderegg said he doesn't personally agree with conversion therapy but that he's "miffed" the governor made the move. But he questioned whether the interim meeting was the "proper forum" to discuss the legality of the rule, and whether legislation should instead be debated during a session.
Bramble questioned whether, "on the other side," therapists are able to suggest clients use puberty-blocking hormones and said those can do "lifelong harm." Bennion responded that therapists can do so.
Rep. Carol Spackman Moss, D-Salt Lake City, said she was "surprised" lawmakers were discussing the issue after years of LGBTQ advocates discussing the harm young people have faced after being exposed to conversion therapy.
"I don't see that this rule does harm to people," she said. "I think this is a sound rule, and I really am troubled that you're trying to make changes."
The chairmen of the committee put the issue on the meeting's agenda, Bramble noted.
Rep. Mark Wheatley, D-Murray, asked if the Division of Occupational and Professional Licensing has received any complaints about the rule. Steinagel said it has not.
Rep. Brady Brammer, R-Highland, noted it's the only form of treatment outlined by the Division of Occupational and Professional Licensing. He noted that outdated treatment methods get rooted out of medical fields naturally.
"Why do we treat this differently than every other medical procedure that is typically handled through the medical malpractice process?" Brammer questioned.
Bramble ultimately suggested either repealing the rule and "starting over," or letting therapists decide for themselves whether to perform conversion therapy.
But Anderegg suggested keeping the rule in place until the 2023 general session begins and coming up with legislation that would replace the rule to be more clear. He said he's worried about someone before the session, should the rule be scrapped, "causing the harm that we don't want."
The meeting adjourned without a decision being made.
LGBTQ organizations and The Church of Jesus Christ of Latter-day Saints worked toward a legislative solution to end conversion therapy in 2019, but the effort failed to gain enough support from lawmakers. Herbert then directed the Utah Division of Occupational and Professional Licensing to prohibit conversion therapy for minors.
The church opposed an earlier rule — also crafted at the request of the governor after the legislation failed — on the grounds that it did not protect therapists who are parents, grandparents or religious leaders from losing their license if they give spiritual, religiously based counsel. It also clarified that it opposes conversion therapy and its therapists do not practice it.
The Division of Occupational and Professional Licensing has authority from the Legislature to make and enforce rules.