By Howard Fischer
Capitol Media Services
PHOENIX -- The top House Republican contends a new order by Gov. Katie Hobbs banning the use of public funds for "conversion therapy'' is illegal and appears to violate the rights of parents to make decisions for their children.
In a letter Monday to the governor, House Speaker Ben Toma acknowledged that some states have banned the practice. But he said that is something that can be done only by the Legislature.
"Your executive order is an improper exercise of your authority,'' the Peoria Republican told Hobbs.
But Toma said the legal problems run far deeper.
He said her definition of what is "conversion therapy'' is `unprecedented, vague, unintelligible, and unenforceable,'' citing her use of the words "any practice or treatment.''
"State agencies directed to implement your executive order cannot begin to understand what constitutes a banned 'conversion therapy,' Toma wrote.
But gubernatorial press aide Christian Slater said the order is a bit more specific.
What it outlaws is "any practice or treatment that seeks or purports to change an individual’s non-heteronormative sexual orientation or non-cisgender identity, including efforts to change behaviors or gender expression, under the false premise that homosexuality and gender-diverse identities are pathological.''
And Slater pointed out that Hobbs, in her executive order, cited the position of the American Psychological Association. It has stated that "sexual orientation conversion efforts'' actually are linked to increased efforts at suicide.
Hobbs also said the federal Substance Abuse and Mental Health Services Administration has determined that conversion therapy is "coercive, can be harmful, and should not be part of behavioral health treatment.''
Toma, however, said there are other issues.
One is the "Parents' Bill of Rights,'' a broad statement in Arizona law of the rights of parents over a minor child "without obstruction or interference from this state.'' Provisions range from directing the child's education and upbringing to deciding the moral or religious training of the child.
There also is a provision saying that the government may "usurp the fundamental right of parents to direct the upbringing, education, health care and mental health'' of their children only by first showing it is "essential to accomplish a compelling governmental interest of the highest order'' and that the method of interference "is narrowly tailored and is not otherwise served by a less restrictive means.''
Other than citing the opposition of various medical experts and professional organizations, Hobbs' executive order cites only one such interest.
"The government has a duty to taxpayers to ensure that decisions are fiscally sound, transparent, and evidence based, and that public healthcare funds are not spent on discredited, ineffective, and unsafe practices,'' she stated.
Toma also said the state constitutional right of freedom of speech protects the right of patients to speak freely with their therapists.
He also cited a 2020 federal appellate court ruling which voided as unconstitutional a conversion therapy ban enacted by a Florida city. There, Toma said, the court determined that the First Amendment does not allow the government to determine how their neighbors may be counseled about matters of sexual orientation or gender.''
But Slater said all that misses a crucial point.
"It's not like an actual ban on conversion therapy,'' he said of the governor's order.
"That would have to be statutory,'' Slater continued, just like Toma is claiming. But this, he said, "is just a ban on the state promoting or supporting conversion therapy.''
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