Pickup v. Brown (42 F. Supp. 3d 1347, 2012)

United States District Court for the Eastern District of California 2012-12-04

Citations

Full opinion text

ORDER

KIMBERLY J. MUELLER, District Judge.

Plaintiffs seek to enjoin Senate Bill (SB) 1172 from taking effect on January 1, 2013. The bill prohibits licensed mental health professionals in California from engaging in sexual orientation change efforts (“SOCE”) with minors. Plaintiffs, who are therapists, parents and minors, contend SB 1172 violates their First and Fourteenth Amendment rights. Their motion came on for hearing on November 30, 2012. Plaintiffs were represented by Matt Staver in oral argument, and additionally in the courtroom by Daniel Schmid and Stephen Crampton. Defendants were represented by Deputy Attorney General Alexandra Gordon. Amicus Equality California was represented by David Dinielli and Michelle Friedland in oral argument, and also in the courtroom by Bram Alden, Christopher Stoll, Lika Miyake and Shannon Minter. After careful consideration of the arguments made in the briefs and at argument, and having reviewed the relevant legal authority, the court finds plaintiffs are not likely to prevail on the merits so as to prevail at this stage of the litigation. For the reasons explained below, plaintiffs’ motion is DENIED.

I. PROCEDURAL HISTORY

Plaintiffs in this case are David Pickup, Christopher Rosik, Ph.D., Joseph Nicolosi, Ph.D., and Robert Vazzo, all licensed mental health professionals; the National Association for Research and Therapy of Homosexuality (NARTH); the American Association of Christian Counselors (AACC); Jack and Jane Doe 1, on behalf of minor John Doe 1; and Jack and Jane Doe 2, on behalf of minor John Doe 2. John Does 1 and 2 are patients of Dr. Nicolosi (Decl. of Jack Doe 1 ¶ 10, ECF 28-5; Decl. of Jack Doe 2 ¶¶ 13-14, ECF 28-5). Plaintiffs name the following defendants: Governor Edmund G. Brown, Jr.; Anna Caballero, Secretary of the State and Consumer Services Agency of California; Kim Madsen, Executive Officer of the California Board of Behavioral Sciences; Michael Erickson, Ph.D., President of the California Board of Psychology; and Sharon Levine, President of the Medical Board of California.

Plaintiffs’ complaint, filed on October 4, 2012, challenges SB 1172, which adds three provisions to California’s Business and Professions Code. The new law provides that a mental health provider, as defined by the statute, shall not “engage in sexual orientation change efforts with a person under 18 years of age.” Sexual orientation change efforts are defined as “any practices ... that seek to change an individual’s sexual orientation.” Plaintiffs assert six constitutional claims, alleging SB 1172 violates: (1) the therapists’ right to free speech and the minors’ right to receive information under the First Amendment; (2) the therapists’ right to liberty of speech and the minors’ right to receive information under Article I § 2(a) of the California Constitution; (3) the parents’ and minors’ right to free exercise of religion; (4) the parents’ and minors’ right to free exercise and enjoyment of religion under Article I, § 4 of the California Constitution; (5) the Jack and Jane Does’ parental rights under the First and Fourteenth Amendment; and (6) the Jack and Jane Does’ parental rights under Article I, § 7 of the California Constitution. (See generally ECF 1.)

On October 19, 2012, Equality California filed a motion to intervene as a party defendant. (ECF 24.) Plaintiffs have opposed the motion and Equality California has filed a reply. (ECF 56, 72.) The motion to intervene is resolved by separate order.

On October 23, 2012, plaintiffs filed the pending amended motion for a preliminary injunction. (ECF 29.) Defendants have opposed the motion and plaintiffs have filed a reply. (ECF 48, 60.)

On November 21, 2012, the court granted Equality California’s request to file an amicus brief and to participate in oral argument on the motion for a preliminary injunction. (ECF 67.) Equality California filed its amicus brief on November 21, 2012. (ECF 70.)

II. BACKGROUND ON SOCE

As passed by the Legislature, SB 1172 seeks to regulate therapy known as “sexual orientation change efforts,” or SOCE (pronounced “sosh”). “The phrase sexual orientation change efforts (SOCE) encompasses a variety of methods, including techniques derived from psychoanalysis, behavioral therapy, and religious and spiritual counseling. These techniques share the common goal of changing an individual’s sexual orientation from homosexual to heterosexual.” (ECF 52 ¶ 26 (emphasis in original).)

Modepn SOCE traces its history to the mid-twentieth century, when homosexuality was considered a form of disease. At that time, “many mental health professionals sought to ‘cure’ [homosexuality] using a variety of techniques, including psychotherapy, hormone treatments, aversive conditioning with nausea-inducing drugs, lobotomy, electroshock, and castration.” Id. ¶ 27. Use of these practices has dropped significantly in light of the current position of many American psychological and psychiatric professionals that homosexuality is not a mental illness. Id. ¶ 28. “[M]ost practitioners [have] stopped attempting to change sexual orientation and some [have taken] strong public stands against such efforts.” Id. Plaintiff NARTH’s treatment guidelines recognize SOCE as “an increasingly controversial subject.” (ECF 63-2 at 6.)

Despite the documented decline of use in therapeutic practice, “the visibility of SOCE has increased in the last decade.” (ECF 54-1 at 33.) The American Psychological Association (“APA”) has observed that “most SOCE currently seem[s] directed to those holding conservative religious and political beliefs, and recent research on SOCE includes almost exclusively individuals who have strong religious beliefs.” Id. Plaintiff NARTH agrees that deeply religious people account for the bulk of patients now seeking SOCE. (ECF 63-2 at 17.) (“Research indicates that the majority of people who present to clinicians with unwanted same-sex attractions are motivated in part by deeply held religious values.”).

Modern day SOCE can be categorized as either aversion or nonaversion treatments, with some practitioners utilizing techniques from both. Aversion treatments include practices “such as inducing nausea, vomiting, or paralysis; providing electric shocks; or having the individual snap an elastic band around the wrist upon arousal by same-sex erotic images or thoughts. Other examples of aversive behavioral treatments include covert sensitization, shame aversion, systematic desensitization, orgasmic recondition, and satiation therapy.” (ECF 54-1 at 30.) Plaintiff NARTH recognizes the controversy aversion treatment presents within the psychological and medical fields, as well as the potential harms to patients presented by such therapies. See ECF 63-2 at 29. NARTH’s own treatment guidelines recommend avoiding some aversion treatments. See id. (“... in light of current research and professional ethics, some interventions for unwanted same-sex attractions and behavior are not recommended. These include shock therapy and other aversive techniques, so-called reparenting therapies, and coercive forms of religious prayer.”).

Nonaversive SOCE treatments center on “changing] gay men’s and lesbians’ thought patterns by reframing desires, redirecting thoughts, or using hypnosis, with the goal of changing sexual arousal, behavior, and orientation.” (ECF 54-1 at 30.) Such efforts often are accomplished by an accompanying “educational process of dating skills, assertiveness, and affection training with physical and social reinforcement to increase other-sex sexual behaviors.” Id.

Plaintiff NARTH’s practice guidelines articulate the goal of SOCE as “supporting] the principle that individuals are capable of making their own choices in response to same-sex attractions and [to] promote autonomy and self-determination.” (Id. at 21.) NARTH advises clinicians to accomplish this goal by “(a) acknowledging a client’s choice or desire to seek intervention for unwanted same-sex attractions and behavior; (b) exploring why these attractions and behaviors are distressing to the client ...; (c) addressing the cultural and political pressures surrounding choice in response to same-sex attractions; (d) discussing the available range of professional therapies and resources ...; (e) providing understandable information on outcome research related to change interventions ...; and (f) obtaining informed consent for treatment.” Id. (citations omitted).

III. SB 1172

A. The Statute Enacted by SB 1172

SB 1172 enacts the following new sections of the California Business and Professions Code:

865. For the purposes of this article, the following terms shall have the following meanings:

(a) “Mental health provider” means a physician and surgeon specializing in the practice of psychiatry, a psychologist, a psychological assistant, intern, or trainee, a licensed marriage and family therapist, a registered marriage and family therapist, intern, or trainee, a licensed educational psychologist, a credentialed school psychologist, a licensed clinical social worker, an associate clinical social worker, a licensed professional clinical counselor, a registered clinical counselor, intern, or trainee, or any other person designated as a mental health professional under California law or regulation.

(b)(1) “Sexual orientation change efforts” means any practices by mental health providers 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.

(2) “Sexual orientation change efforts” does not include psychotherapies that: (A) provide acceptance, support, and understanding of clients or the facilitation of clients’ coping, social support, and identity exploration and development, including sexual orientation-neutral interventions to prevent or address unlawful conduct or unsafe sexual practices; and (B) do not seek to change sexual orientation.

865.1. Under no circumstances shall a mental health provider engage in sexual orientation change efforts with a patient under 18 years of age.

865.2. Any sexual orientation change efforts attempted on a patient under 18 years of age by a mental health provider shall be considered- unprofessional conduct and shall subject a mental health provider to discipline by the licensing entity for that mental health provider.

B. Legislative History

A California State Senator introduced SB 1172 on February 22, 2012, with the stated intention of protecting California lesbian, gay, bisexual and transgender individuals from “sham therapies” that aim to change their sexual orientation. Senate Judiciary Committee, SB 1172, 2011-2012 Sess. 5 (Cal.2012); Complete Bill History of SB 1172 (Official California Legislative Information maintained electronically by Legislative Counsel of California). Initially, the bill included provisions allowing former or current SOCE patients to sue a therapist engaging in SOCE and requiring therapists who provide SOCE to adult patients to obtain a patient’s signature on an informed consent form. Senate Committee on Business, Professions and Economic Development, SB 1172, 2011-2012 Sess. 8-9 (Cal.2012). Prior to final passage, the draft bill was changed to remove these two provisions, leaving the sections set forth above. Senate Rules Committee: Third Reading, SB 1172, 2011-2012 Sess. 1 (Cal. 2012). The full Senate passed a version of the bill on May 30, 2012, twenty-three votes to thirteen. Complete Bill History of SB 1172. SB 1172 was then referred to the Assembly, where it cleared committee to reach the floor. Id. After amending it several times, the Assembly passed the bill on August 28, 2012, fifty-two to twenty-two. Id. The Senate then adopted the Assembly amendments on August 30, on a vote of twenty-three to thirteen. Id. The Governor received the bill on September 10 and signed it into law on September 30, 2012. Cal. Stats. 2012, ch. 835, p.

Amicus Equality California was a primary sponsor of SB 1172, along with several other organizations, including Lambda Legal, Gaylesta, Mental Health America of Northern California and National Center for Lesbian Rights. Senate Rules Committee: Unfinished Business, SB 1172, 2011-2012 Sess. 7-8 (Cal.2012). Initially, the California Psychological Association, California Association for Licensed Professional Clinic Counselors, California Psychiatric Association and California Association of Marriage and Family Therapists opposed the bill, on grounds that a statutory ban on a type of therapy was unprecedented, particularly the complete ban on SOCE for minors, even those who freely consent to the treatment. Senate Committee on Business, Professions and Economic Development, SB 1172, 2011-2012 Sess. 9-10 (Cal.2012). These organizations also expressed concern that the proposed definition of SOCE was too vague. Assembly Committee on Business, Professions and Consumer Protection, SB 1172, 2011-2012 Sess. 4 (Cal.2012). Other organizations, including plaintiff NARTH, also opposed the bill. Senate Rules Committee: Unfinished Business, SB 1172, 2011-2012 Sess. 8 (Cal.2012). The California Psychological Association and California Association of Marriage and Family Therapists eventually supported the bill. Senate Rules of Committee: Unfinished Business, SB 1172, 2001-2012 Sess. 7 (Cal. 2012). At the time the bill was delivered to the Governor, it was opposed by the American College of Pediatricians, California Catholic Conference, Inc., Catholic Medical Association, Christian Medical and Dental Associations, Church State Council, Liberty Counsel Action, NARTH, Pacific Justice Institute and Parents and Friends of Ex-Gays and Gays. Id. The other professional organizations who had initially opposed the bill, listed above, had withdrawn their opposition. See id.

During committee hearings, the Legislature addressed a potential conflict with California Health & Safety Code § 124260, which allows minors who are twelve years of age or older to consent to mental health treatments without parental approval. Senate Judiciary Committee, SB 1172, 2011-2012 Sess. 6-8 (Cal.2012). The Legislature ultimately concluded that Section 124260 was meant to allow minors to access only helpful treatment and thus that SB 1172’s goal of protecting minors from harmful treatment was not in conflict. Id.

In adopting SB 1172, the Legislature expressly relied on mental health professional organizations’ research into the safety and efficacy of SOCE, and in particular the report of the 2009 Task Force of the American Psychological Association (APA) titled Appropriate Therapeutic Responses to Sexual Orientation. The Legislature also referenced the Ninth Circuit Court of Appeals’ decision in Pitcherskaia v. INS, 118 F.3d 641 (9th Cir.1997), holding that “sexual orientation treatment” of a Russian citizen including “sedative drugs and hyponosis” constituted mental and physical torture, although the Legislature did not suggest the treatment in Pitcherskaia was akin to current SOCE practices in California. Senate Rules Committee: Third Reading, SB 1172, 2011-2012 Sess. 6 (Cal.2012). The Legislature briefly documented the history of treatment of homosexuality by mental health practitioners. Senate Rules Committee: Unfinished Business, SB 1172, 2011-2012 Sess. 4-5 (Cal.2012). It noted the APA’s removal of homosexuality from the Diagnostic and Statistical Manual of Mental Disorders (DSM) list of mental disorders in 1973, id. at 4; the further modification of the DSM in the mid-1980s to eliminate the definition of those “in conflict with” their sexual orientation as having a mental disorder, id. at 5; and the removal of the diagnosis of egodystonic homosexuality from the DSM in 1987. Id. The Legislature also noted the World Health Organization’s removal of homosexuality from its International Classification of Disorders-10 in 1992, and shift to use of the term egodystonic homosexuality. Id.

The Legislature also reviewed the work of contemporary SOCE practitioners, including plaintiff Nicolosi’s psychotherapeutic techniques, Senate Rules Committee: Third Reading, SB 1172, 2011-2012 Sess. 6 (Cal.2012), as well as NARTH’s view that homosexuals can and should be allowed to change their sexual orientation through therapy, Assembly Committee on Business, Professions and Consumer Protection, SB 1172, 2011-2012 Sess. 3 (Cal. 2012).

The final version of SB 1172 sets forth the Legislature’s findings, summarized here:

• The major mental health professional organizations have recognized homosexuality is “not a disease, disorder, illness, deficiency, or shortcoming” for nearly 40 years.

• The 2009 APA Task Force report “concluded that sexual orientation change efforts can pose critical health risks to lesbian, gay, and bisexual people,” including among many other effects “confusion, depression, guilt, helplessness, hopelessness, shame, social withdrawal, suicidality, substance abuse, stress, disappointment, self-blame, decreased self-esteem and authenticity to others, ...”

• The APA, in a 2009 resolution, advised persons to avoid SOCE.

• The APA has resolved that SOCE does not have proven effectiveness and that practitioners should refrain from engaging in the treatment.

• The American School Counselor Association, American Academy of Pediatrics, American Medical Association Council on Scientific Affairs, National Association of Social Workers, American Counseling Association Governing Council, American Psychoanalytic Association and Pan American Health Organization of the World Health Organization all have issued statements opposing SOCE.

• In a 2012 article, the American Academy of Child and Adolescent Psychiatry advised clinicians “there is no evidence that sexual orientation can be altered through therapy, and [ ] attempts to do so may be harmful.”

• In a 2009 article in the journal Pediatrics, documentation supported the conclusion that “[mjinors who experience family rejection based on their sexual orientation face especially serious health risks.”

The Legislature concluded that “California 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.”

IV. MOTION FOR PRELIMINARY INJUNCTION

A. Standard

Injunctive relief is an extraordinary remedy that may only be awarded upon a clear showing that the moving party is entitled to such relief. Winter v. Natural Res. Defense Council, Inc., 555 U.S. 7, 22, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). As provided by Federal Rule of Civil Procedure 65, a court may issue a preliminary injunction to preserve the relative position of the parties pending a trial on the merits. University of Texas v. Camenisch, 451 U.S. 390, 395, 101 S.Ct. 1830, 68 L.Ed.2d 175 (1981). The party seeking injunctive relief must show it “is likely to succeed on the merits, ... is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in [its] favor, and that an injunction is in the public interest.” Winter, 555 U.S. at 20, 129 S.Ct. 365.

Before the Winter decision, the Ninth Circuit employed a “sliding scale” or “serious questions” test, which allowed a court to balance the elements of the test “so that a stronger showing of one element may offset a weaker showing of another.” Alliance-for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir.2011) (citing Clear Channel Outdoor, Inc. v. City of Los Angeles, 340 F.3d 810, 813 (9th Cir.2003)). Recently, the Circuit has found that its “serious question” sliding scale test survived Winter: a court may issue a preliminary injunction when the moving party raises serious questions going to the merits and demonstrates that the balance of hardships tips sharply in its favor, so long as the court also considers the remaining two prongs of the Winter test. Cottrell, 632 F.3d at 1134-35. However, a court need not reach the other prongs if the moving party cannot as a threshold matter demonstrate a “fair chance of success on the merits.” Pimentel v. Dreyfus, 670 F.3d 1096, 1111 (9th Cir.2012) (quoting Guzman v. Shewry, 552 F.3d 941, 948 (9th Cir.2009); internal quotations omitted).

B. Analysis

Plaintiffs’ motion for preliminary injunctive relief is based only on their first and fifth claims for relief: violation of the therapists’ free speech and violation of parental rights under the First and Fourteenth Amendments. (ECF 28 at 2.) The free speech claim supports three separate arguments: SB 1172 violates plaintiff therapists’ rights by discriminating based on viewpoint and/or content; SB 1172 violates plaintiff minors’ rights to receive information; and SB 1172 is unconstitutionally vague. The court addresses each of these free speech arguments and then turns to plaintiffs’ parental rights argument. Because the court determines plaintiffs do not meet the threshold test of likelihood of prevailing on the merits on any claim, the court addresses each of plaintiffs’ arguments only in light of Winter’s first prong.

1. Therapists’ Free Speech Rights And Discrimination Based On Viewpoint Or Content

Plaintiffs argue that SB 1172 unconstitutionally discriminates on the basis of viewpoint, by prohibiting licensed mental health providers from “even mentioning the viewpoint that unwanted same-sex attractions can be changed”; they say the bill instead mandates that counselors “espouse one viewpoint regarding same-sex sexual attractions, i.e., that they ... cannot be stopped .... ” Plaintiffs contend this discrimination against a particular viewpoint cannot withstand strict scrutiny, even if the statute is interpreted as merely restricting content rather than viewpoint. (ECF 28 at 8-9.) Defendants respond that SB 1172 is not viewpoint or content discriminatory because the statute regulates conduct, not speech. They argue that SB 1172 does not prohibit licensed mental health professionals from mentioning SOCE to minors. Defendants also contend SB 1172 does not improperly single out a particular viewpoint because the Legislature did not exclude heterosexual minors from the statute’s coverage. (ECF 48 at 18-20.) In reply, plaintiffs urge that defendants have not met their burden in justifying the statute’s restrictions on their First Amendment rights. They also argue the statute is not a content-neutral licensing scheme but rather “dictate[s] the content of what is said in therapy.” Because “psychotherapy is a series of conversations” and the “relationship between the psychotherapist and client is founded upon speech,” they say, SB 1172 regulates speech, not conduct. (ECF 60 at 8.)

a. Content and Viewpoint Discrimination

“Content discrimination occurs when the government chooses the subjects that may be discussed, while viewpoint discrimination occurs when the government prohibits speech by particular speakers, thereby suppressing a particular view about a subject.” Giebel v. Sylvester, 244 F.3d 1182, 1188 (9th Cir.2001) (internal citations, quotation marks omitted). Viewpoint discrimination is a “subset or particular instance of the more general phenomenon of content discrimination .... [T]he distinction is not a precise one.” Rosenberger v. Rector and Visitors of the Univ. of Virginia, 515 U.S. 819, 830-31, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995). Whether a statute is content-based may be determined from the text of the statute itself: “if the statute describes speech by content, then it is content based.” G.K. Ltd. Travel v. City of Lake Oswego, 436 F.3d 1064, 1071 (9th Cir.2006). “Content-based regulations are presumptively invalid.” R.A.V. v. City of St. Paul, 505 U.S. 377, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992).

The Ninth Circuit considered content and viewpoint discrimination in Conant v. Walters, 309 F.3d 629, 634 (9th Cir.2002), a case upon which plaintiffs rely. In Conant, the Circuit addressed whether the government could investigate a physician or revoke a physician’s license to prescribe controlled substances when the only basis for such action was the physician’s professional recommendation for the use of marijuana. The policy at issue in Conant was released by the Director of the Office of the National Drug Policy Council and was formulated after two states decriminalized the use of marijuana for limited medical purposes. Id. at 632 n. 1. The court described the policy as seeking “to punish physicians on the basis of [ ] doctor-patient communications,” because only those conversations that included a discussion of the medicinal use of marijuana triggered the policy. Id. at 637. It found the policy was not only content-based, but viewpoint discriminatory, because it precluded the discussion of marijuana and also condemned the expression of any opinion that marijuana might help a particular patient. Id. The court recognized that the First Amendment protects physician speech because “an integral component of the practice of medicine is the communication between a doctor and a patient,” something the law recognizes through the application of the physician-patient privilege. The basis of the privilege, the court said, is that “ ‘barriers to full disclosure would impair diagnosis or treatment.”’ Id. at 636 (quoting Trammel v. United States, 445 U.S. 40, 51, 100 S.Ct. 906, 63 L.Ed.2d 186 (1980)). The government’s policy thus infringed the physician’s First Amendment speech because it prevented the doctor from exercising medical judgment in recommending a form of treatment he or she believed might benefit a patient. Id. at 638. Conant did not consider whether the government’s restriction on prescribing medical marijuana or using medical marijuana as a treatment would raise any First Amendment concerns.

Similarly, in Wollschlaeger v. Farmer, 880 F.Supp.2d 1251 (S.D.Fla.2012), a district court considered a Florida statute that prevented a medical care provider from asking a patient about gun ownership and recording any information about gun ownership in a patient’s records, subject to a few exceptions. The court described the act as imposing “content-based restrictions on practitioners’ speech” because it “regulate[s] practitioners’ inquiries [and] record-keeping ...” on only one subject. Id. at 1261-62. It observed that the law was “different from so many other laws involving practitioners’ speech” because “it aims to restrict a practitioner’s ability to provide truthful, non-misleading information to a patient .... The purpose of preventative medicine is to discuss with a patient topics that ... informs [sic] the patient about general concerns that may arise in the future.” Id. at 1263. The court in Wollschlaeger found that the law burdened the doctor-patient relationship by prohibiting speech necessary to the practice of preventative medicine and thereby preventing patients from receiving truthful, non-misleading information. Id. at 1266-67.

Here, plaintiffs have not demonstrated a likelihood of success on the merits of their claim that SB 1172 will subject mental health professionals to discipline if they merely recommend SOCE to minor patients, or discuss it with them, or even present them with literature about SOCE. This case is thus unlike Conant, where the government was unable “to articulate exactly what speech [was] proscribed, describing it only in terms of speech the patient believes to be a recommendation of marijuana.” Id. at 639. Here, in contrast, the state’s insistence that the statute bars treatment only, and not the mention of SOCE or a referral to a religious counselor or out-of-state practitioner, is consistent with a fair reading of the statute itself. (ECF 48 at 18-19.)

According to the statute, SOCE is any “practices” aimed at changing a person’s sexual orientation. As the law itself does not define either “practices” or “change,” the court construes the terms in accordance with their “ordinary or natural meaning.” Federal Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 476, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994); Human Life of Washington, Inc. v. Brumsickle, 624 F.3d 990, 1021 (9th Cir.2010), cert. denied, — U.S. -, 131 S.Ct. 1477, 179 L.Ed.2d 302 (2011). A “practice” is “the application or use of an idea, belief, or method, as opposed to the theory or principles of it,” and the transitive verb “to change” is to “make (a thing) other than it was; to render different.” Concise Oxford English Dictionary 1126, 236 (12th ed.2011). As defined, then, what SB 1172 proscribes is actions designed to effect a difference, not recommendations or mere discussions of SOCE. This fact distinguishes SB 1172 from the policy at issue in Conant or the law at issue in Wollschlaeger, as SB 1172 does not on its face penalize a mental health professional’s exercise of judgment in simply informing a minor patient that he or she might benefit from SOCE; it also does not prohibit speech necessary to the therapist’s practice. Moreover, the statute does not preclude a minor’s taking information from a licensed mental health professional and then locating someone other than a licensed professional to provide SOCE. Cf. Sorrell v. IMS Health, Inc., — U.S. -, 131 S.Ct. 2653, 2665, 180 L.Ed.2d 544 (2011) (“[a]n individual’s right to speak is implicated when information he or she possesses is subjected to ‘restraints on the way in which the information might be used’ ”) (quoting Seattle Times Co. v. Rhinehart, 467 U.S. 20, 32, 104 S.Ct. 2199, 81 L.Ed.2d 17 (1984)). The SOCE therapy regulated by SB 1172 is conduct.

The court also must determine, however, whether the statute’s restriction on engaging in SOCE itself, distinct from discussion or recommendation of SOCE, violates a licensed professional’s First Amendment rights as plaintiffs claim.

b. First Amendment Rights

In making their conflicting arguments with respect to the First Amendment, both parties cite to the Ninth Circuit case of National Association for the Advancement of Psychoanalysis v. California Board of Psychology, 228 F.3d 1043 (9th Cir.2000) (“NAAP”). NAAP involved a challenge to provisions of California’s licensing laws establishing certain educational requirements for a person to be licensed as a psychologist. The individual plaintiffs, who had not completed all the required courses despite their other, substantial educational accomplishments, alleged that the licensing scheme violated their substantive due process and First Amendment rights. The Circuit first considered the extent to which speech was implicated, noting that a course of conduct may be regulated even if it is “ ‘in part initiated, evidenced, or carried out through means of language, either spoken, or written, or printed.’ ” Id. at 1053 (quoting Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 502, 69 S.Ct. 684, 93 L.Ed. 834 (1949)). It rejected NAAP’s claim that psychoanalysis is “pure speech,” quoting the district court’s determination that “ ‘the key component of psychoanalysis is the treatment of emotional suffering and depression, not speech.... That psychoanalysts employ speech to treat their clients does not entitle them, or their profession, to special First Amendment protection.’ ” Id. at 1054 (emphasis in original); see also Stedman’s Medical Dictionary for the Health Professions and Nursing 1394, 1763 (7th ed.2012) (defining “psychotherapy” as “[treatment of emotional, behavioral, personality, and psychiatric disorders based primarily on verbal or nonverbal communication and interventions with the patient, in contrast to treatments using chemical and physical measures” and “therapy” as the “systematic treatment of a disease, dysfunction, or disorder,” and in psychiatry and clinical psychology, as “psychotherapy”); Concise Oxford English Dictionary 1537 (12th ed.2011) (defining “treatment” as “management in the application of remedies; medical ... application or service” and “action ... towards a person”); Cal. Bus. & Prof.Code § 4996.9 (defining psychotherapy as the use of “methods ... to assist a person ... to achieve a better psychosocial adaptation ... to modify internal and external conditions which affect individuals, groups or communities in respect to behavior, emotions, and thinking”).

At the same time, that therapy is conduct, as discussed above, does not necessarily mean the First Amendment has no application: “conduct may be ‘sufficiently imbued with elements of communication to fall within the scope of the First and Fourteenth Amendments.’ ” Texas v. Johnson, 491 U.S. 397, 404, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989) (quoting Spence v. State of Wash., 418 U.S. 405, 409, 94 S.Ct. 2727, 41 L.Ed.2d 842 (1974)); Schneider v. Amador Cnty., No. CIV S-10-3242, 2011 WL 3876015, at *3 (E.D.Cal. Sep. 1, 2011), recommendation adopted in 2011 WL 4766445 (E.D.Cal. Sep. 29, 2011). The Supreme Court has rejected the idea that “an apparently limitless variety of conduct can be labeled ‘speech’ whenever the person engaging in the conduct intends thereby to express an idea.” United States v. O’Brien, 391 U.S. 367, 376, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968); City of Dallas v. Stanglin, 490 U.S. 19, 25, 109 S.Ct. 1591, 104 L.Ed.2d 18 (1989) (rejecting the idea that every activity with “some kernel of expression” is entitled to First Amendment protection). Instead, it has extended First Amendment protection to conduct only when “ ‘[a]n intent to convey a particularized message [is] present, and ... the likelihood [is] great that the message w[ill] be understood by those who view it.’ ” Anderson v. City of Hermosa Beach, 621 F.3d 1051, 1058 (9th Cir.2010) (quoting Spence, 418 U.S. at 409-11, 94 S.Ct. 2727; process of tattooing entitled to First Amendment protection because the end product, the tattoo, is pure speech); Giebel, 244 F.3d at 1187 (handbill entitled to First Amendment protection because it was designed to convey information). “If combining speech and conduct were enough to create expressive conduct, a regulated party could always transform conduct into ‘speech’ simply by talking about it.” Rumsfeld v. Forum for Academic and Inst. Rights, Inc., 547 U.S. 47, 66, 126 S.Ct. 1297, 164 L.Ed.2d 156 (2006).

Courts reaching the question have found that the provision of healthcare and other forms of treatment is not expressive conduct. O’Brien v. United States Dept. of Health & Human Servs., No. 4:12-CV-476 (CEJ), 2012 WL 4481208, at *12 (E.D.Mo. Sep. 28, 2012) (“Neither the doctor’s conduct in prescribing nor the patient’s conduct in receiving contraceptives is inherently expressive. Giving or receiving health care is not a statement in the same sense as wearing a black armband or burning a flag.” (internal citations omitted)); see Abigail Alliance for Better Access v. von Eschenbach, 495 F.3d 695 (D.C.Cir.2007) (collecting cases finding no constitutional right of access to particular medical treatments reasonably prohibited by the government); Martin v. Campbell, No. 09-4077, 2010 WL 1692074 (W.D.Ark. Apr. 23, 2010) (rejecting a First Amendment challenge to a statute preventing acupuncturists from prescribing, administering or dispensing certain drugs); People v. Privitera, 23 Cal.3d 697, 703-04, 153 Cal.Rptr. 431, 591 P.2d 919 (1979) (“the selection of a particular procedure is a medical matter” to which privacy status does not attach); Sharrer v. Zettel, No. C 04-00042 SI, 2005 WL 885129, at *7 (N.D.Cal. Mar. 7, 2005) (in rejecting claim that plaintiffs had a constitutional right to consult denturist, court found no fundamental right to choose type of medical treatment or particular health care provider); State Dept. of Health v. Hinze, 232 Neb. 550, 441 N.W.2d 593, 597 (1989) (practice of medicine itself is not protected by the First Amendment). Given the weight of the authority on the question and the nature of the record before the court, plaintiff therapists have not shown they are likely to succeed in bearing their burden of showing that the First Amendment applies to SOCE treatment; they have not shown that the treatment, the end product of which is a change of behavior, is expressive conduct entitled to First Amendment protection. See ECF 54-2 at 12; Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293 n. 5, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984) (even though government bears burden of justifying restrictions on First Amendment interests, “it is the obligation of the person desiring to engage in assertedly expressive conduct to demonstrate that the First Amendment even applies”). Accordingly, because plaintiffs have not shown they will be able to establish that SOCE therapy is expressive speech and thus within First Amendment purview, the court need not reach the argument advanced by defendants and amicus Equality California, that SB 1172’s restrictions satisfy the intermediate test established in United States v. O’Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968) (requiring showing that incidental burden on First Amendment freedoms is justified by neutral regulation promoting a substantial government interest that would not be achieved as effectively without the regulation).

Plaintiffs also are not likely to succeed on the merits of the therapists’ First Amendment claims, given judicial recognition of the state’s role in regulating the medical profession. See, e.g., Watson v. Maryland, 218 U.S. 173, 176, 30 S.Ct. 644, 54 L.Ed. 987 (1910) (“There is perhaps no profession more properly open to such regulation than that which embraces the practitioners of medicine.”); see also Lambert v. Yellowley, 272 U.S. 581, 47 S.Ct. 210, 71 L.Ed. 422 (1926) (“High medical authority being in conflict as to the medicinal value of spirituous and vinous liquors taken as a beverage, it would, indeed, be strange if Congress lacked the power to determine that the necessities of the liquor problem require a limitation of permissible prescriptions.”). In Planned Parenthood of Southeastern Penn. v. Casey, 505 U.S. 833, 884, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992) (plurality opinion), the Supreme Court rejected a number of challenges to the requirement that doctors provide certain information to women seeking abortions. In a short passage, the Court rejected the doctors’ claim that the regulations compelled speech, saying that a physician’s First Amendment right to speak “as part of the practice of medicine” is “subject to reasonable licensing and regulation by the State.” As one Court of Appeals has observed, Casey means that strict scrutiny does not apply to a claim that regulations compelled a physician to provide specified information to women seeking abortions. Texas Medical Providers Performing Abortion Services v. Lakey, 667 F.3d 570 (5th Cir.2012) (stating “the three sentences with which the Court disposed of the First Amendment claims are, if anything, the antithesis of strict scrutiny”). See also Rust v. Sullivan, 500 U.S. 173, 200, 111 S.Ct. 1759, 114 L.Ed.2d 233 (1991) (upholding restrictions on funding for abortion counseling; “The doctor is always free to make clear that advice regarding abortion is simply beyond the scope of the program.”); NAAP, 228 F.3d at 1054 (concluding that “[t]he communication that occurs during psychoanalysis is entitled to constitutional protection, but it is not immune from regulation”); Shultz v. Wells, No, 2:09cv646-WKW, 2010 WL 1141452, at *9-10 (M.D.Ala. Mar. 3, 2010), recommendation adopted in 2010 WL 1141444 (M.D.Ala. Mar. 22, 2010) (finding no constitutional infirmity in disciplining a chiropractor for telling a patient to throw away medicine prescribed by a physician, in light of fact that chiropractors could not prescribe).

Plaintiffs point to the case of Legal Services Corporation v. Velazquez, 531 U.S. 533, 121 S.Ct. 1043, 149 L.Ed.2d 63 (2001). But in that case, the Supreme Court rejected regulations that restricted legal services lawyers from advising their clients and advocating that welfare laws were unconstitutional because the government had not reasonably controlled the message in the limited public forum it had created by subsidizing the legal services. Id. at 543-44, 121 S.Ct. 1043. The instant case does not involve speech in a limited public forum.

This case instead is more like Ohralik v. Ohio State Bar Assn., 436 U.S. 447, 98 S.Ct. 1912, 56 L.Ed.2d 444 (1978), in which the Court rejected a lawyer’s challenge to professional discipline for his in-person solicitation of clients. In so doing it observed that a lawyer’s solicitation is only marginally related to First Amendment concerns and so falls within the state’s “proper sphere of economic and professional regulation,” particularly in light of the state’s “special responsibility” for maintaining standards among members of the licensed professions. Id. at 459, 460, 98 S.Ct. 1912.

As SOCE therapy is subject to the state’s legitimate control over the professions, SB 1172’s restrictions on therapy do not implicate fundamental rights and are not properly evaluated under strict scrutiny review, but rather under the rational basis test. NAAP, 228 F.3d at 1050 (applying rational basis test after deciding that challenged mental health professional licensing scheme did not implicate a fundamental right). Applying the rational basis test, the reviewing court presumes the constitutionality of the state action by requiring those challenging the legislative judgment to “convince the court that the legislative facts on which the classification is apparently based could not reasonably be conceived to be true by the governmental decisionmaker.” Id. (quoting Vance v. Bradley, 440 U.S. 93, 111, 99 S.Ct. 939, 59 L.Ed.2d 171 (1979)). The state action need not even actually advance its stated purpose; the court instead inquires whether “the government could have had a legitimate reason for acting as it did.” Id. (internal quotations and citation omitted). As examined below, SB 1172 passes the rational basis test. See page 1375 infra. Plaintiff therapists are not likely to prevail on the merits on their First Amendment claim.

2. Minors’ Free Speech Rights and Prevention of Receipt of Information about SOCE

Plaintiffs argue that SB 1172 violates minors’ First Amendment rights by preventing them from being able to receive or hear about SOCE. (ECF 28 at 28-29.) The government may burden children’s right to free speech under the First Amendment, but “only in relatively narrow and well-defined circumstances.” Erznoznik v. City of Jacksonville, 422 U.S. 205, 212-13, 95 S.Ct. 2268, 45 L.Ed.2d 125 (1975). “The state’s authority over children’s activities is broader than over like actions of adults.... A democratic society rests, for its continuance, upon the healthy, well-rounded growth of young people into full maturity as citizens, with all that implies.” Prince v. Massachusetts, 321 U.S. 158, 168, 64 S.Ct. 438, 88 L.Ed. 645 (1944). The government’s interest in the well-being of children exists apart from the government’s interest in supporting parents’ efforts to protect their children. See Ginsberg v. State of New York, 390 U.S. 629, 640, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968). Thus, the Supreme Court “ha[s] sustained legislation aimed at protecting the physical and emotional well-being of youth even when the 'laws have operated in the sensitive area of constitutionally protected rights.” New York v. Ferber, 458 U.S. 747, 757, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982).

The First Amendment protects listeners’ right to receive information. Bd. of Educ., Island Trees Union Free Sch. Dist. No. 26 v. Pico, 457 U.S. 853, 866-67, 102 S.Ct. 2799, 73 L.Ed.2d 435 (1982); Stanley v. Georgia, 394 U.S. 557, 564, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969). Communication between doctors and patients can implicate patients’ rights to free speech. See Conant, 309 F.3d at 636. The court has already concluded that SB 1172’s restrictions on SOCE do not implicate the First Amendment right to free speech in analyzing plaintiff therapists’ claim. The minors’ claim is but the “flip side of that coin,” id. at 643 (Kozinski, J., concurring), and subject to a similar, more exacting analysis, see Pico, 457 U.S. at 867, 102 S.Ct. 2799. Plaintiffs have not shown a likelihood of success on the minor plaintiffs’ claim.

3. Vagueness

Plaintiffs make three primary vagueness arguments as part of their First Amendment due process challenge: First, plaintiffs maintain “SB 1172 leaves the therapist guessing since it does not define ... the foundational concept of ‘sexual orientation.’ ” (ECF 28 at 14.) Second, plaintiffs maintain “SB 1172 also fails to address ... what counsel therapists may provide to minors who identify themselves as bisexual.” (Id. at 16.) Finally, plaintiffs argue, “the lack of any specified geographic boundaries further obscures the reach of the bill” because “SB 1172 could presumably cover [w]eb videos, radio broadcasts or electronic transmissions into California that provide SOCE or referrals to counselors who provide SOCE.” (Id. at 17; emphasis in original.)

Due process demands that any statutory proscription be sufficiently precise “to provide people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits.” Hill v. Colorado, 530 U.S. 703, 732, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000); see also Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972). A statute lacking the requisite precision must be struck down for vagueness. Id.

However, “perfect clarity and precise guidance have never been required even of regulations that restrict expressive activity.” Ward v. Rock Against Racism, 491 U.S. 781, 794, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989) (citing Grayned, 408 U.S. at 110, 92 S.Ct. 2294.) Indeed, voiding a democratically enacted statute on grounds it is unduly vague is an extreme remedy. The Ninth Circuit has explained that facial invalidation for vagueness “is, manifestly, strong medicine that has been employed by the [Supreme] Court sparingly and only as a last resort.” California Teachers Ass’n v. State Bd. of Educ., 271 F.3d 1141, 1155 (9th Cir.2001). When addressing a facial vagueness challenge, as here, the court “should uphold the challenge only if the enactment is impermissibly vague in all of its applications.” Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494-95, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982); accord Humanitarian Law Project v. U.S. Treasury Dept., 578 F.3d 1133, 1146 (2009) (a statute will survive a facial vagueness challenge so long as “it is clear what the statute proscribes in the vast majority of its intended applications”); Cal. Teachers Ass’n, 271 F.3d at 1151 (“[Uncertainty at a statute’s margins will not warrant facial invalidation if it is clear what the statute proscribes in the vast majority of its intended applications.”).

Ah additional analytical nuance exists where the statutory proscription purports to regulate a targeted industry or profession. That is,

if the statutory prohibition involves conduct of a select group of persons having specialized knowledge, and the challenged phraseology is indigenous to the idiom of that class, the standard is lowered and a court may uphold a statute which uses words or phrases having a technical or other special meaning, well enough known to enable those within its reach to correctly apply them.

United States v. Weitzenhoff, 35 F.3d 1275, 1289 (9th Cir.1993) (quoting Precious Metals Assocs., Inc. v. Commodity Futures Trading Comm’n, 620 F.2d 900, 907 (1st Cir.1980), in turn quoting Connolly v. General Constr. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 70 L.Ed. 322 (1926); internal quotations omitted).

a. “Sexual Orientation”

Plaintiffs’ argument attacking the term “sexual orientation” as undefined, as well as the corresponding lack of guidance to a therapist regarding when or if he or she has begun to engage in prohibited SOCE therapy, cites the APA Task Force, which noted that “[s]ame-sex sexual attractions and behavior occur in the context of a variety of sexual orientations ... and ... is fluid or has an indefinite outcome.” (ECF 28 at 14.) In response, defendants argue that plaintiffs, as practitioners of SOCE, cannot allege the term “sexual orientation” is vague; moreover, they say, the term “sexual orientation” is well understood within the mental health field generally. “To practicing psychologists, it is a term of ‘common understanding ... to which no [practitioner] is a stranger.’ ” (Id. at 19.) Defendants also argue the statute proscribes only the discrete act of attempting, through sexual orientation change efforts, to alter the sexual orientation of a minor. (Id. at 20.)

SB 1172 does proscribe that which the named plaintiff therapists themselves admit to practicing and therefore must understand: therapy the sole purpose of which is to alter the sexual orientation of a patient, namely SOCE. The court is unpersuaded that the term “sexual orientation” is unduly vague. Plaintiffs rely on Keyishian v. Board of Regents of University of State of N.Y., 385 U.S. 589, 599, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967), which held that a statute prohibiting employing any teacher who “advocates, advises, or teaches the doctrine of forceful overthrow of the government” was unconstitutionally vague because “[i]t w[ould] prohibit the employment of one who merely advocates the doctrine in the abstract without any attempt to indoctrinate others.” Id. For example, the Court inquired whether “the teacher who carries a copy of the Communist Manifesto on a public street” violates the statute. Id. Keyishian is not analogous to this case: the term “sexual orientation” does not create uncertainty as to what a therapist can and cannot do, as was the case for teachers in Keyishian; rather it is what the statute proscribes. Unlike in Keyishian, the statute expressly targets a specific form of therapy known to the community in which it is practiced.

The court also finds the term “sexual orientation” is neither linguistically nor semantically vague. The definition of the term is clear: “[A] person’s sexual identity in relation to the gender to whom he or she is usually attracted; [] the fact of being heterosexual, bisexual, or homosexual.” Concise Oxford English Dictionary 1321 (12th ed.2011). This definition is reinforced by a litany of California statutes. See, e.g., Cal. Educ.Code § 212.6 (defining sexual orientation as “heterosexuality, homosexuality, or bisexuality”); Cal. Civ. Code § 51(e)(6) (referencing Cal. Gov’t Code § 12926®) (same); CalPenal Code § 422.56(h) (same).

One other federal court, after canvassing other decisions, determined the term sexual orientation is not unconstitutionally vague. See Hyman v. City of Louisville, 132 F.Supp.2d 528, 545-47 (W.D.Ky.2001) (relying on Black’s dictionary definition, rejecting vagueness challenge to statute banning discrimination on the basis of sexual orientation), rev’d on other grounds, 53 Fed.Appx. 740 (6th Cir.2002). That court concluded, “[t]he definitions of ‘sexual orientation’ ... are consistent with the meanings attributed to those terms by common usage,” namely heterosexuality, homosexuality, and bisexuality. Id.

Because plaintiffs use the term themselves to describe the sexual orientation change .therapy they practice, the standard of review is lower. The “statutory prohibition involves conduct of a select group of persons having specialized knowledge, and the challenged phraseology is indigenous to the idiom of that class .... ” Weitzenhojf, 35 F.3d at 1289. Plaintiff therapists “well enough know” what the statute proscribes. Id.

b. Treatment Allowed and Disallowed

In complaining that SB 1172 fails to clarify the forms of therapy covered by the statute, plaintiffs point out the new law does not address what therapists may do when visited by minors who identify themselves as bisexual. They argue “there is simply no way to determine a proper course of action when a [bisexual] questioning person enters [a therapist’s] office.” (ECF 28 at 17.) In its amicus brief, EQCA notes the statute defines the term “sexual orientation change efforts” as “any practices by mental health providers that seek to change an individual’s sexual orientation,” such as efforts to “change behaviors or gender expressions, or to eliminate or reduce sexual or romantic attractions or feelings toward individuals of the same sex.” (Amicus at 14, ECF 70.) The statute also lists a number of psychotherapeutic techniques that do not fall within the statutory proscription. (Id.) Defendants point out the statute “does not prohibit mental health providers from counseling parties that homosexuality is morally wrong and should be changed, so long as they do not engage a minor in a course of treatment designed to change their sexual orientation.” (ECF 48 at 20.) Such a course of treatment “requires a concerted application of psychological techniques and principles” in order to “chang[e] deeply rooted feelings and behaviors.” (Id.)

While the statute does not go into the level of detail plaintiffs suggest is needed, on its face the new law is clear enough: mental health providers, as defined by the statute, may not implement practices designed for the specific purpose of changing an individual’s sexual orientation. The record is replete with specific explanations and examples of what SOCE can entail, including from plaintiffs themselves. As explained above, such practices include both aversive and non-aversive techniques: inducing nausea, vomiting, or paralysis; providing electric shocks; or having the individual snap an elastic band around the wrist when aroused by same-sex erotic images or thoughts, as well as attempting to alter thought patterns by reframing desires, redirecting thoughts, or using hypnosis. It is these forms of therapy, implemented with the intent to alter the patient’s sexual orientation, that the statute prohibits.

The simplicity of the statute also cuts against plaintiffs’ argument. At bottom, the proscription is discernable to a reasonable person, and particularly to a mental health professional: any psychotherapeutic intent to change sexual orientation is not allowed by any licensed professional. Cf. United States v. Kuffel, 1 F.3d 1247 (9th Cir.1993) (denying vagueness challenge to sentencing statute, in part, because of the “simple wording of th[e] statute.”). Nothing in SB 1172 prevents a therapist from mentioning the existence of SOCE, recommending a book on SOCE or recommending SOCE treatment by another unlicensed person such as a religious figure. (ECF 28 at 16.) The statute does not require affirmation of a patient’s homosexuality. Id. Even if, “at the margins,” there is some conjectural uncertainty as to what the statute proscribes, such uncertainty is insufficient to void the statute for vagueness because “it is clear what the statute proscribes in the vast majority of its intended applications,” Cal. Teachers Ass’n, 271 F.3d at 1151, namely therapy intended to alter a patient’s sexual orientation.

c. Geographic Reach

Plaintiffs’ argument based on the lack of geographic boundaries notes that SB 1172 could cover a California-licensed counselor who also is licensed in other jurisdictions and who offers SOCE in states outside of California. (Id. at 18.) Defendants respond that the statute “does not prohibit, on its face or otherwise, web videos, radio broadcasts, or electronic transmissions into California about SOCE.” (Id. at 20.)

Here, the statute does not subject a licensed mental health professional to discipline for merely sending “[w]eb videos, radio broadcasts or electronic transmission[s] into California.” (ECF 28 at 17.) If a mental health professional licensed by California is engaging a patient in therapy intended to alter that patient’s sexual orientation via video conference, or other remote medium, only then is that therapist subject to discipline.

In sum, based on the record before the court, there is a general understanding of what SOCE encompasses and the statute surpasses the bar set for minimal clarity. Plaintiffs are not likely to succeed on the merits of their claim that SB 1172 is unconstitutionally vague.

4. Parents’ Fundamental Rights

Plaintiffs assert that the parental right at issue in this case, of choosing a particular mental health therapy for one’s children, is a fundamental right that California cannot infringe without satisfying strict scrutiny. (ECF 28 at 22 (citing Troxel v. Granville, 530 U.S. 57, 80, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) (Thomas, J. concurring)).) Plaintiffs contend SB 1172 “tramples” upon parents’ fundamental interest in the care, custody, and control of children by preventing parents from caring for their children’s mental health as the parents see fit. (Id. at 18.) Analogizing to Meyer v. Nebraska, 262 U.S. 390, 400-01, 43 S.Ct. 625, 67 L.Ed. 1042 (1923) and Pierce v. Soc’y of Sisters, 268 U.S. 510, 534-35, 45 S.Ct. 571, 69 L.Ed. 1070 (1925), plaintiffs aver SB 1172 operates in the same unconstitutional manner as the state-imposed educational programs in those cases, which prevented parents from choosing German language instruction and private school education for their children. Plaintiffs say SB 1172 in the same way prevents parents from choosing SOCE therapy for their children. (ECF 28 at 20-22.)

Plaintiffs further contend parents’ right to make decisions regarding their children’s mental health is specifically protected, even when that decision is not agreeable to the child or involves risks. (Id. at 19 (citing Parham v. J.R., 442 U.S. 584, 602-03, 99 S.Ct. 2493, 61 L.Ed.2d 101 (1979)).) Neither state officials nor federal courts, plaintiffs maintain, are equipped to review such parental decisions. (Id. (citing Parham, 442 U.S. at 603-04, 99 S.Ct. 2493).) Finally, plaintiffs claim defendants have no proof that SOCE therapy is harmful, but rather rely upon “mere[] policy statements by organizations politically opposed to SOCE therapy” that are “anecdotal [and] speculative.” (ECF 28 at 22; ECF 60 at 11.) Because SOCE therapy is harmless, children are not protected by proscribing it; therefore, plaintiffs conclude, California has no compelling interest in SB 1172 that justifies its encroachment on fundamental parental rights. (ECF 60 at 11.)

Defendants argue SB 1172 does not infringe any fundamental rights and should be upheld because it is “rationally related to a legitimate state interest.” (ECF 48 at 24 (citing NAAP, 228 F.3d at 1047).) Defendants contend there is no fundamental or privacy right in choosing a particular type of medical treatment, whether oh behalf of oneself or one’s children. (Id. at. 21.) Defendants cite Ninth and Tenth Circuit cases in which the courts held cancer patients did not have a privacy interest in choosing a treatment the FDA had not deemed safe and effective. Carnohan v. United States, 616 F.2d 1120, 1122 (9th Cir.1980) (per curiam); Rutherford v. United States, 616 F.2d 455, 457 (10th Cir.1980).

Parents do of course have a fundamental interest in the general care, custody, and control of their children. Troxel, 530 U.S. at 65, 120 S.Ct. 2054; Wisconsin v. Yoder, 406 U.S. 205, 213-14, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972); Pierce, 268 U.S. at 534-35, 45 S.Ct. 571; Meyer, 262 U.S. at 400-01, 43 S.Ct. 625. This interest is “perhaps the oldest of the fundamental liberty interests” recognized by the Supreme Court. Troxel, 530 U.S. at 65, 120 S.Ct. 2054. State action that infringes upon this fundamental right is subject to strict scrutiny. Fields v. Palmdale Sch. Dist., 427 F.3d 1197, 1208 (9th Cir.2005), aff'd, 447 F.3d 1187 (2006) (per curiam), cert. denied, 549 U.S. 1089, 127 S.Ct. 725, 166 L.Ed.2d 583 (2006); see also Yoder, 406 U.S. at 221, 92 S.Ct. 1526 (“Where fundamental claims of religious freedom are at stake ... we must searchingly examine the interests that the